1976.04.14

1974 (Gyo-Tsu) 75

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

Judgment of the Grand Bench, quashed and decided by the Supreme Court

The judgment below shall be altered as follows:
The demand of the Appellant shall be dismissed. However, the election held on December 10, 1972 in the No. 1 district of Chiba-ken (prefectural) for electing members of the House of Representatives is illegal.
The costs of the court below and the costs of the Court shall be borne by the Appellee.

Concerning the ground for Jokoku appeal by the Appellant and the Appellant's Attorneys, Yasushi Koshiyama and Kuniaki Yamaguchi:

The gist of the ground for Jokoku appeal is as follows: (1) Because Article 14, paragraph 1 of the Constitution requires that each vote must be counted equally at elections of the members of the Diet it is contrary to the Article to give a different weight to a vote on the basis of where the voter lives. (2) The election conducted on December 10, 1972 for electing members of the House of Representatives under the provisions on the election districts and the apportionment of the seats (hereinafter referred to as the apportionment provision at issue) based on Article 13, Appendix No. 1 and Supplementary Provisions, paragraphs 7 to 9 (the provisions prior to the amendment by Law No. 63 of 1975) of the Public Offices Election Law (hereinafter referred to as P.O.E. Law), contradicts Article 14, paragraph 1 of the Constitution because a part of the people were discriminated on the basis of where they live (election districts) without reasonable grounds in that the maximum number of voters per delegate was 4.99 times as much as the minimum number of voters. (3) Therefore, the validity of the election at issue (hereinafter means the election mentioned in paragraph 2 of the main text) should be nullified and the judgment of the court below, grounded on a different point of view from that of the Appellant, has mistaken the interpretation and application of Article 14 of the Constitution.

1.Equality of the right to vote and the mechanics of election

(1) Under our Constitution government is conducted by the representatives of the people on the sacred trust of the people (preamble, paragraph 1 ). It provides that the Diet which is the highest organ of state power shall consist of the House of Representatives and the House of Councillors, the members of both Houses being elected representatives of all the people (Articles 41, 42, 43, paragraph 1), that the right to elect members of both Houses is guaranteed to all people above an appointed age as the inalienable right of the people (Article 15, paragraphs 1 and 3) and that there shall be no discrimination of the qualifications of voters because of race, creed, sex, social status, family origin, education, property or income (Article 44, proviso).

Although it is generally recognized in present democratic nations that the right to vote, which is a fundamental right of the people guaranteeing opportunities to participate in government and is the basis of the Parliamentary Democracy, should be given equally to all of the people above an appointed age, the establishment of such equality of the right to vote was not long before. Although equality, together with freedom, is a fundamental and ultimate value in modern nations and had been consistently sought after especially in the field of politics, the people were not at the outset treated equally in their political value and even the right to vote, a fundamental political right, bore many kinds of restrictions and discriminations. These restrictions and discriminations gradually have been removed in the long course of development of the democracy and equality of the right to vote as is now seen was firmly established at last. Articles of the Constitution as to the people's right to vote, too, are nothing but the result of such a historical development.

What has been consistently sought after through the historical development is, as mentioned above, the idea that at elections which is the most basic means for the people to participate in government each of the people should be treated absolutely equally and the difference of the attribute of each citizen because of one's physical, mental or social conditions should be taken off. Equality of the right to vote as a result of a thorough application of such an idea of equality does not mean only the expansion of the right to vote by removing restrictions on the requisites for the elector, but also means equality of the weight of each vote, namely equality of the influence of each vote on the outcome of the election. Therefore, not only a mechanics of election that deliberately makes the weight of each vote substantially inequable by means of, for example, giving plural votes to a specific group of voters or allocating disproportionate number of seats depending on the amount of taxes is evidently contrary to equality of the right to vote, but also a mechanics of election to give practically different weight to each vote is also questionable from the point of view of equality. Consequently, the mechanics of election at issue in this case is also questionable because there is a variance in the ratio of the number of voters to the number of representatives, namely, a disparity in the weight of one vote among election districts.

The Constitution, generally pronouncing the principle of equality by providing that all of the people are equal under the law (Article 14, paragraph 1), sets up Article 15, paragraphs 1 and 3, and Article 44, proviso regarding the right to vote as an application of that principle to the field of politics. Considering that these provisions are the result of the aforementioned historical development of the principle of equality of the right to vote, it is properly understood that equality under the law aims, in relation to the right to vote, at a thorough equalization of the political value of each citizen, and that these provisions of the Constitution not only prohibit any discrimination of requisites for an elector as is read literally but also require equality of the substance of the right to vote, that is, equality of the weight of each vote.

(2) However, it is not proper to consider that equality of the weight of each vote means mathematical precision of equality of the contribution of each vote to the outcome of the election, because the weight of each vote is closely related to the mechanics of an election and it is inevitable that there might be some difference in the influence of each vote depending on an adopted mechanics of election.

A mechanics of an election under the Representative Democracy, aiming to have public interests and opinions represented impartially and effectively on government through delegates, should be decided in consideration of the requirement for the stability of politics and other circumstances of the nation. There is no universal and unalterable model which is logically required. For this reason, our Constitution, saying that the number of the members of each House, election districts, method of voting and other matters pertaining to the election of members of both Houses shall be fixed by law (Articles 43, paragraph 2, and 47), leaves the actual decision on the mechanics of an election to the discretion of the Diet. The Constitution does not deem equality of the weight of each vote as the only and absolute factor of a mechanics of election to be taken into account by the Diet. The Diet may consider other factors that might be required by the individual conditions of each Houses and create an appropriate mechanics of an election which could realize the impartial and effective representation. Equality of the weight of each vote should be harmonized with other political purposes and factors properly taken into consideration by the Diet except for such aforementioned discriminative factors as would evidently contradict equality or such unreasonably discriminative factors as race, religion or sex.

However, to say this does not mean that equality of the weight of each vote as an element of equal franchise remains only to be one of the several points of consideration at the exercise of the Diet's discretion and does not have any special significance or value as a constitutional requirement. Though equality of the weight of each vote does not always require to be realized absolutely, the constitutional requirement of equality has significance and effectiveness because an actual inequality of the weight of each vote created under a concrete mechanics of election chosen at the discretion of the Diet has to be reasonably justified by some important political considerations properly taken into account by the Diet. For this reason a concrete mechanics of election which the Diet has set up for each House should be closely examined and scrutinized from the point of whether it is in accord with the constitutional requirement for equality of the weight of each vote.

2.The constitutionality of the apportionment provision at issue

(1) This case relates to an election of the members of the House of Representatives for which the medium constituency system with single ballot is adopted. This system is understood to be adopted because in the light of the ideal nature of the House a mechanics of election is preferable which enables for the candidates to keep close contact with residents in the community and which guarantees not only to have the will of the majority of voters represented in government but also to leave possibility to select delegates representing the will of the minority. It would not be doubted that it is within the constitutional discretion of the Diet to adopt this election system in accordance with such political considerations.

It is not unusual that when the nation is divided into election districts and a single ballot system is adopted the number of voters in each election district is not always absolutely proportionated to the number of delegates elected from each district. However, when the variation from the ideal might become too gross to be overlooked, it raises constitutional doubt of whether the mechanics of election might bring about an unreasonable discrimination of the weight of each vote on the basis of where the voter lives. The case at issue is one of these instances.

While, if a medium constituency election system is adopted for the general election, the most significant and fundamental factor to be considered at the establishment of election districts and the apportionment of the seats to them is equality of the ratio of the number of voters or the population (Although strictly speaking it is the number of voters which should be deemed as the proper factor, it may be allowed to take the population to be the factor, because the latter is almost always proportional to the former. So hereinafter we take the population to be a factor.) to the number of the seats of the representatives in each district, there exists not a small number of other factors which may or should be taken into account. Especially the administrative division of To, Do, Fu and Ken, which has performed important roles in the actual politics and administration in our nation and has been regarded as un-negligible in people's living and sentiment, is such a factor as should be taken into account as a basis of election districting. When these divisions of To, Do, Fu and Ken arc divided into subdivisions for the purpose of districting such factors might be taken into considerations as the past records of elections, the unity as an election district, other administrative subdivisions of municipalities such as city, town and village, the square measure, the density of population, the characteristics of constituent residents, traffic conditions, geographical circumstances, etc., in relation to the number of the representatives for subdivisions and a concrete determination will be made for establishing election districts. Furthermore, it is, of course, one political factor of high importance how the Diet evaluates a rapid change of the society and the phenomenon of the gravitation of the population to cities, and how the Diet takes into consideration these factors in the decision of the election districting and apportionment of the seats, while, as aforesaid, taking account of the requirement for the political stability on the other hand.

Thus, at the decision of the election districting and apportionment of the seats a variety of factors in the nature of complex and delicate politics and technique are to be considered. Therefore, with regard to how these factors should be taken into account and reflected in the decision of the Diet there is no definite objective standard, so that the question is whether the decision of the Diet could be approved as a reasonable exercise of its discretion. And it goes without saying that such an examination whether the decision of the Diet could be approved should not be made easily merely on the basis of restricted materials and from restricted points of view, but should be, in the light of the nature of the matter, made with utmost cautions. However, if, after such a careful examination, inequality of the weight of each vote which ensued from the mechanics of election held under the concrete election districts and the apportionment of seats is found so excessive as might be regarded unreasonable even if various other factors are taken into account, then the Diet should be presumed to have exceeded its reasonable discretion, and that mechanics of election should be held unconstitutional unless specific reasons to justify the inequality are demonstrated.

(2) The apportionment provision at issue is a fruit of the partial amendment of P.O.E. Law by Law No. 132 of 1964. The main purpose of the amendment was to rectify the excessive disproportion of the population to the number of seats in some election districts which had appeared during the past general-elections. This was accomplished by increasing the number of whole seats and redistributing them so that the maximum population per delegate among all districts would be less than about two times the minimum population per delegate. However, according to the fact neither party disputes, on December 10, 1972, the date of the election at issue, the minimum population per delegate was 47.30% and the maximum 162.87% in comparison with the average population per delegate. The ratio of the maximum to the minimum was almost 5 to 1. Such a wide variance, which seems to have been purely a result of the change in population since the amendment, indicates inequality of the weight of each vote which could not be considered reasonable, even if the aforementioned factors, especially political discretion to cope with the rapid change of the society, were taken into account. Since no specific reasons can be found to justify this situation, we are compelled to hold that the variance in the ratio of the number of seats to population under this apportionment provision was, at the time of the election at issue, so excessive as to contradict the constitutional requirement for equality of the right to vote.

Careful consideration, however, must be given to whether the apportionment provision at issue should be concluded unconstitutional solely on those grounds. In general, it is true that, when a statute enacted in conformity with the Constitution has fallen short of the requirements of the constitutionality due to the subsequent change of circumstances, it should be considered to have come to bear the defect of the unconstitutionality. However, if the constitutional defect is a result of a gradual change of circumstances it is necessary to examine carefully exactly when the law became unconstitutional. In this case, it is neither practical nor appropriate to reform very often the election districts and the distribution of seats to cope with the constant change in the ratio of the population to the number of the seats in election districts caused by the growth or the diminution of the population. Therefore, even if the variance in the ratio has become so gross as to contradict the requirement for the equal franchise the apportionment provision should not be held unconstitutional immediately on that account. Rather it should be held unconstitutional only when any rectification, which the constitution requires to be made in consideration of the change of the population within a reasonable period of time, has not been made within such a time period.

We find that the above-mentioned extreme disproportion of the population to the number of seats under the apportionment provision at issue which existed at the above-mentioned date of the election had been caused by the gradual change in population and had reached the point of contradicting the requirement for the equal franchise long before the date of that election. No rectification had been made for eight years since the amendment of the Law in 1964, notwithstanding the fact that P.O.E. Law itself provides in the Appendix No. 1 that the Appendix is to be rectified every fifth year after its enactment in accordance with the most recent national census. So, we cannot help finding that despite the apportionment provision at issue had become not in conformity with the constitutional requirements, it had not been rectified within a reasonable period of time as required by the Constitution. Therefore, it should have been held to contradict the constitutional requirement for the equal franchise at the time of the election at issue. Since the election districts and apportionment of seats are decided after complex and delicate considerations with relation to the whole number of the seats, the apportionment provision thus made is inseparable and a change in a part of the provision has influence on other parts. Therefore, not only the particular part of the apportionment provision at issue but also the whole part of the provision is to be held unconstitutional.

3.The validity of the election at issue

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

Article 98, paragraph 1 of the Constitution, providing that "this Constitution shall be the supreme law of the nation and no law, ordinance, imperial rescript or other act of government, or part thereof contrary to the provisions hereof shall have legal force or validity", pronounces the character of the Constitution as the supreme law and declares that any act of government contrary to the Constitution is invalid. However, the provision itself does not give any definite solution to all problems regarding the validity of laws or acts of government contrary to the Constitution. It may be proper to hold that as a rule any law contrary to the Constitution is null and void ab initio and any act done on the basis of that law should also be held null and void, because such a holding is the most adequate way to head off or to rectify any result contrary to the Constitution. However, on the contrary, if such a holding might not contribute to head off or rectify unconstitutional results, but might bring about seriously improper results in relation to other constitutional matters, then such a holding might be contrary to the purport of the Constitution and another reasonable solution from the general point of view might be needed.

As for the apportionment provision at issue, it is true that the provision is unconstitutional and the election based on it is contrary to the constitutional requirement, but a holding to the effect that the provision and the election conducted under it are null and void ab initio would not immediately bring about a state of affairs in conformity with the Constitution. Instead, such a holding would, entail the results of disqualifying all representatives elected by the election retroactively and make questionable the validity of enactments approved by the House of Representatives composed of these representatives. Furthermore, it would make the House unable not only to function but even to amend the apportionment provision at issue so as to conform to the Constitution. The Constitution would not expect such a state of affairs. It is, therefore, very obvious that such a holding should not be made.

Next problem is whether it is possible to rule the election at issue invalid (Article 205, paragraph 1 of P.O.E. Law) in a litigation which is provided for nullifying the validity of an election formatively only in the future by Article 204 of P.O.E. Law. In the litigation based on Article 204 of P.O.E. Law a ruling to nullify the validity of an election would nullify merely that in a specific election district in the future and would not influence the validity of elections in other districts. Therefore, such an improper result as might be caused in case the election as a whole is ruled invalid retroactively would not be brought about. (It may not be certain that in the litigation based on Article 204 of P.O.E. Law one can allege the nullification of the validity of election as a whole on the ground of the unconstitutionality of the apportionment provision itself, since the Article essentially expects to nullify the validity of an election held in violation of P.O.E. Law and to cause a second election (Article 109, paragraph 4 of P.O.E. Law) to be conducted in accord with the provisions thereof and does not expect such a situation as a legitimate election is impossible without an amendment of the Law. However, the litigation based on the Article is the sole means for electors to allege the nullification of the validity of election under the present legal system, except which there is no other means of litigation to seek rectifying the Law on the ground of its unconstitutionality. In the light of the constitutional requirement that the people should be equipped with as many as possible means of remedy against acts of government impairing fundamental human rights, it is not a correct understanding of the Law that it specifically forbids to allege inequality of the franchise under the apportionment provision as a ground of the nullification of the validity of an election in the proceedings of the litigation based on Article 204.)

However, on the other hand, a ruling to nullify the validity of an election in the litigation based on Article 204 of P.O.E. Law would merely deprive the representatives for the election district at issue of their seats and the fact remains that an amendment of P.O.E. Law is necessary in order to hold a second election in that district in conformity with the Constitution. Furthermore, if such a litigation might be brought in every election district and the validity of every election were nullified, the result would be as improper as in the case mentioned above. Even if the validity of elections only in specific election districts were nullified, it is not desirable that among elections with the same defect of the unconstitutionality some are nullified and others remain valid and that the House of Representatives is still obliged to work and to rectify P.O.E. Law without the representatives for districts where the validity of elections were nullified. Such a result is neither expected nor purported by the Constitution. Then, even when one is permitted to allege the nullification of the validity of an election in the litigation based on Article 204 of P.O.E. Law on the ground of the unconstitutionality of the apportionment provision, further consideration is necessary with regard to whether the validity of the specific election should be nullified whenever the allegation of the unconstitutionality is sustained.

The Administrative Cases Litigation Law, a general law on litigations seeking judicial review of administrative dispositions, provides in Article 31, paragraph 1, former part that "in the event that a disposition or decision is illegal but the revocation thereof brings about a conspicuous detriment upon public interest and the court deems the revocation of the disposition or decision does not conform to the public welfare, it may turn down such a demand." This provision, though adopted on legal-policy considerations, is thought to be originated in a basic principle of law which is not restricted in its application to a litigation to revoke administrative dispositions. However, the aforesaid article is excluded its application to litigations on the validity of elections based on P.O.E. Law (Article 219 of P.O.E. Law) and that exclusion is based upon the legislative decision that the nullification of the validity of elections which were contrary to P.O.E. Law is always in accord with public interests. Thus, so far as an election which is contrary to P.O.E. Law is concerned, it would be impossible to hold that the validity of an election should not be nullified in consideration of surrounding conditions although grounds for nullifying it are established, because this legislative decision is binding in such a case. On the contrary, with regard to the election at issue which bears a general defect of being conducted under the unconstitutional P.O.E. Law that could not be rectified without an amendment of the Law, the legislative decision made in view of an election which merely bears a specific defect of being contrary to P.O.E. Law that could be corrected by a second election should not necessarily be regarded binding. It may rather be proper to understand that the court may, applying the basic principle of law implied in the aforementioned provision of the Administrative Cases Litigation Law, pass a judgment to evade undesirable results which would be caused by the nullification of the validity of an election. It is true that such an application of a basic principle of law may not be easily permitted without express statutory provisions and that especially dispositions which have grave defects of the unconstitutionality should generally not be allowed to keep its validity in the light of Article 98, paragraph 1 of the Constitution, but there may admittedly be a case which requires the application of this basic principle of law from the legal points of view of higher level.

In respect of the case at issue, as is stated above, the election at issue admittedly was conducted under the unconstitutional apportionment provision, but a ruling to nullify its validity for this reason not only has not an immediate effect of rectifying the unconstitutional state of affairs, but also might rather bring about a result which the Constitution does not necessarily purport. These circumstances being taken into consideration, it is proper, in accordance with the aforementioned principle of law, to declare only that the election is illegal because it was conducted under the unconstitutional apportionment provision and not to nullity the validity of the election itself. In such a case it is proper to dismiss the demand for the nullification of the validity of the election and to declare in the main text that the election at issue is illegal.

4.Conclusion

Therefore, the judgment of the court below which held the election valid and dismissed the demand of the Appellant on the merit is illegal in that it made a mistake in the interpretation and application of the Constitution. The Appeal has a good reason solely in this point. Then, the judgment of the court below shall be altered to enter a judgment to dismiss the demand of the Appellant and to declare in the main text that the election at issue is illegal.

Accordingly, the Court by majority opinions of the Justices on the bench, aside from the dissenting opinions of Justice Masao Okahara, Justice Takeso Shimoda, Justice Seiichi Kishi, Justice Buichi Amano, Justice Kiyoo Erikuchi, Justice Kiichiro Otsuka and Justice Yutaka Yoshida, renders the judgment as set forth in the main text in accordance with Article 7 of the Administrative Cases Litigation Law and Article 408 of the Code of Civil Procedure, together with Articles 96, former part and 92, proviso, of the Code of Civil Procedure as to the costs.

The dissenting opinion by Justice Masao Okahara, Justice Takeso Shimoda, Justice Kiyoo Erikuchi, Justice Kiichiro Otsuka and Justice Yutaka Yoshida is as follows:

We believe the demand of the Appellant should be granted because the apportionment provision at the time of the election at issue is unconstitutional so far as the No. 1 district of Chiba-ken is concerned and the election based on it is invalid.

1. We have no objection to the opinion that the legislative decision concerning a mechanics of election, in particular, election districts, the whole number of the members of each House and its distribution is a matter of legislative policy-making of highly political nature, and should be left to the discretion of the Diet. We, however, believe that the basic principle of the separation of three powers requires the exercise of judicial review when the exercise of the discretion of the Diet is so unreasonable as to contradict the constitutional requirement. It would be contrary to the trust of the people for the court to conclude easily that the matter of this kind is unreviewable merely because it is a highly political act of government, or because it is left to the discretion of the Diet.

Now, there is no explicit provision as to the form of the litigation to allege the invalidity of an election on the ground of the constitutional invalidity of the apportionment provision. However, after a lower court in a criminal case concluded that there was no means to give remedy to the accused whose right of speedy trial which is guaranteed by Article 37, paragraph 1 of the Constitution, was impaired, because there were no provisions of remedy in the Code of Criminal Procedure, the Supreme Court ruled that a judgment of acquittal as a special means of remedy should be rendered in order to comply with the constitutional requirement, even if the Code of Criminal Procedure does not provide for such a remedy (ref. grand bench judgment upon Case (A) No. 1700 of 1970, decided on December 20, 1972, Keishu vol. 26, No. 10, p. 631). It should be understood that in this judgment the Court have had recourse to the decision of acquittal (menso) because acquittal (menso) is a form of decision to be delivered in enumerated cases where the material authority of prosecution should be deemed to have lapsed and in that case it was thought proper to deem the material authority of prosecution to have lapsed on reason other than the enumerated ones. Just as well, in the case at issue, it is appropriate to create a means of litigation to allege inequality of the right to vote, a fundamental constitutional right of the people. In this sense the majority opinion is agreeable because it allows the Appellant to resort to Article 204 of P.O.E. Law, a provision for a litigation to seek the nullification of the validity of elections.

2. As the majority opinion states, equality of the weight of each vote is an important constitutional requirement grounded on Article 14, paragraph 1, Article 15, paragraphs 1 and 3, and Article 44, proviso, of the Constitution, and it should be respected. Although the closer the number of voters per delegate in each election district to the average number of that under the apportionment provision, the more satisfactorily the requirement for equality is met, yet the Constitution should be construed to allow a reasonable variance in the weight of each vote because realization of the equality with mathematical precision by no means could be expected. Then, the questions are how gross the variance must be in order to be held unreasonable even if other matters of consideration are taken into account, and how to rule on the validity of the election when the apportionment provision is found unconstitutional due to inequality of the weight of each vote.

The majority opinion decides the apportionment provision was unconstitutional at the time of the election at issue on the ground that the ratio of the maximum number of the voters per delegate to the minimum number of that among all election districts amounted almost 5 to 1, so that inequality of the weight of each vote was so unreasonable as to contradict the constitutional requirement for equality of the right to vote, and the defect of the unconstitutionality had not been rectified within a reasonable period of time. The majority opinion, further stating the unconstitutionality of a part of the apportionment provision makes the whole provision unconstitutional because the election districting and the apportionment of seats are inseparably related to the number of the whole seats, concludes the apportionment provision is unconstitutional as a whole in respect to all election districts without considering the specific deviation which existed in the No. 1 district of Chiba-ken. Then, the majority opinion states its apprehension that many actions might be brought demanding the nullification of the validity of election in every election district, as a result that the apportionment provision as a whole is unconstitutional and that even if the validity of elections only in some districts were nullified the House of Representatives might be obliged to work in the abnormal condition that it is composed of only the representatives elected by the constitutionally defective election and it lacks representatives elected in these districts where the validity of elections were nullified. The majority opinion regards such a condition is extraordinary and is not desirable nor expected by the Constitution. On these reasons, the majority opinion, resorting to the principle of "Jijo-judgment" embodied in Article 31 of the Administrative Cases Litigation Law (hereinafter referred to as A.C.L. Law) and evading the application of Article 219 of P.O.E. Law which excludes the application of Article 31 of A.C.L. Law, decides to render a kind of "Jijo- judgment" to the effect that the validity of the election at issue should not be nullified though the apportionment provision and the election at issue conducted under it are illegal.

3. We believe that the ideal of the Constitution is to guarantee each voter an equal right to vote in the sense that each vote has the same weight. Therefore, if the discrepancy on the weight of each vote in various election districts is excessive, the election is unconstitutional since it is contrary to the requirement for equality of the weight of each vote. One question is how gross the discrepancy must be for the court to hold the election unconstitutional. In foreign nations, where the mechanics of election and its reviewability by the courts is different from ours, there are two methods of setting limits on the degree of variation permitted by using numerics. One is the Election Law of the Federal Republic of Germany which limits the deviation from the average ratio of representatives to whole population to +-33 1/3%. The other is a dissenting opinion in a case in the Supreme Court of the United States of America where the majority held the state laws unconstitutional on the grounds that they failed to do their best to attain equality when the weight of one vote deviates from the average by a few percent. The dissent criticising the rigidity of the Court opinion, contended that the state laws on electoral apportionment for congressional elections should be held constitutional as long as the deviation from the average ratio is within +-10% to 15%. We, however, believe, along with the majority opinion, that it is proper to examine the unconstitutionality of each election individually taking into account whether inequality of the weight of each vote is so serious as to be regarded unreasonable even considering other factors generally taken into consideration by the Diet, and whether or not the defect has been corrected within a reasonable period of time. Then, according to the facts found by the court below, in the No. 1 district of Chiba-ken the average number of voters per representative was as many as 381217.25 which was 253.73% of 150243.66, the average number of voters per representative in the nation. This means the weight of the votes of 2.5 voters in the No. 1 district of Chiba-ken was the equivalent to the weight of one vote of the average voter in the nation. Such a serious deviation of the weight of each vote cannot be considered reasonable under any circumstances. Moreover, the defect is found not to have been corrected within a reasonable period of time in that an extreme increase of the population in the district had been in progress so as to make the disproportion in the weight of each vote unconstitutional long before this election. For these reasons we cannot help concluding that the apportionment provision was unconstitutional in relation to the No. 1 district of Chiba-ken at the time of the election. Yet, we believe, contrary to the majority opinion, that the unconstitutionality of the provision in relation to one election district does not make the whole provision unconstitutional.

In general, it is true that the unconstitutionality of a part of a law makes the whole law unconstitutional insofar as the whole is closely related to the part. However, the fundamental ideal attitude of the review of the constitutionality is to limit the portion of the law held unconstitutional as strictly as possible by reasonable considerations of the degree of the relationship between the defective part and the whole. In this sense it is a matter for careful consideration whether inequality of the weight of a vote existing in one election district bears such a close relationship to many other districts, where an average weight is given to a vote, that the apportionment provision in relation to other election districts must also be considered unconstitutional.

The idea of equality and inequality is a matter of relativity and conceptually the total number of representatives stands in a certain numerical relationship to the total election districts and the apportionment of the seats. There is no doubt that phenomena of overpopulation in one district making the weight of vote of its voters too low and underpopulation in another district making the weight of vote of its voters too high are two sides of the same thing. Even if the highest weight of a vote is grossly different from the lowest, under the conditions that the deviation numeric in both districts is nearly the same, that the district of the highest weight has the same number of seats as the district of the lowest weight, and that the weight of each vote in other districts is very close to the average, reformation of the apportionment provision only related to these two districts would immediately dissolve inequality. Calculating on the numerics appearing in the table of the deviation of the ratio of the number of voters per delegate in each district from the average, on the number of the seats and on the number of the voters in each election district under the apportionment provision at the time of the election at issue, upon which both parties agree, an increase of seats in total by 10 to 20 for certain election district where the weight of a vote is extremely low would change the deviation ratio of other districts, where an average weight is given to a vote, by no more than 2 to 4%. This increase in deviation, compared to the present maximum disparity ratio of 162.87% and the minimum ratio of 47.30%, is so small as to be insignificant. Moreover, if other districts having an extremely high weight of a vote were reformed at the same time, the change in the deviation ratio of the close to average districts would be easily minimized. In this sense we can conclude that a reformation of a part of the apportionment provision does not have such a significant effect on the weight of a vote in other average election districts.

Looking back on the history of apportionment legislation, we, on the one hand, understand that the total number of representatives under the present Constitution was fixed at 466, the same number kept since 1925, without regard to the growth of the population (voters), and on the other hand, that the seats were distributed impartially to all election districts according to their population as a rule, with taking the administrative division and certain other factors into consideration. It is true that at that time the total number of representatives, the total population (voters), division into election districts and the number of apportioned seats were all closely related. The relation, however, gradually became weak because of the extraordinary gravitation of population to the big cities. Then, the total number of representatives as well as the apportionment provision were amended by Law No. 132 of 1964 and Law No. 63 of 1975 to correct the discrepancies in the weight of each vote caused by this phenomenon. Yet, the amendment did not take into account the relationships mentioned above nor did it refer to the districts where the population had markedly decreased, but only managed to increase the number of representatives in the group of election districts where the population had increased rapidly and to redistrict those areas. Therefore, the total number of representatives provided by the amendments in Article 4 of P.O.E. Law was not treated to be fixed so as to be reapportioned impartially to all districts, but rather the sum of the original 466 seats and the added seats in some districts became the new total. Thus, it seems that the legislature considered it possible to amend the apportionment provision in relation to only certain specific election districts without making reapportionment for all election districts.

This means that the unconstitutionality of an election in one election district because of inequality of the weight of a vote does not necessarily cause the unconstitutionality of elections in other districts. Thus, it is not necessary to rule the apportionment provision unconstitutional in relation to all districts, because, regardless of inequality of the weight of one vote in some districts, the provision is still in accord with the ideal of the Constitution in relation to other districts where close to the average weight of a vote is given.

For the reasons above, we conclude that, as far as the No. 1 district of Chiba-ken is concerned, the apportionment provision at the time of the election at issue does not satisfy the constitutional requirement for the equal right to vote provided in Article 14, paragraphs 1 and 3, Article 15, paragraph 1 and Article 44, proviso, of the Constitution and is invalid according to Article 98 of the Constitution. Therefore, the validity of the election at issue conducted under the provision should be nullified.

4. If a judgment to nullify the validity of an election becomes final, the election district loses its representatives. But then, the House of Representatives can and may deliberate on amending the unconstitutional law as soon as possible so as to bring it into accord with the Constitution, though without having representatives for that district, because a second election under the void apportionment provision is not permitted. According to our observation, of course, there are overwhelmingly many election districts all through the nation where the weight of one vote is average, so that it is hardly possible that so many representatives lose their seats by the judgment nullifying the validity of the election as to make the House of Representatives incapable of its business. It is true that the choice of the mechanics of election, especially the election districting, the total number of representatives and the distribution of seats, are left to the reasonable discretion of the legislature, as is mentioned above, but in order to accord with the constitutional requirement the legislature, referring to the reasons of the judgment nullifying the validity of the election, must make efforts to amend the apportionment provision so as to guarantee the average weight of each vote for not only districts where the validity of the election was nullified, but also districts where validity of an election is presumed to be unconstitutional and other related districts which have contributed to lower the weight of one vote in those districts, namely, the districts where the weight of each vote has increased unreasonably.

It is not prohibited by the Constitution that the House of Representatives has a session without having representatives for certain election districts in case that the validity of an election was nullified on the ground of the unconstitutionality of the apportionment provision as this case, or that the House deliberates on an urgent matter before second elections are held in more than several election districts where the validity of elections were about simultaneously nullified by final judgments because of the illegality of elections. Essentially representatives do not represent the interests of the residents in specific election districts, but represent the whole nation (ref. Article 43, paragraph 1 of the Constitution). For this reason, without representatives for certain districts, the House which is composed of representatives for other districts may work without any troubles and the Diet may face no special difficulties in its management.

Though P.O.E. Law provides that a second election shall be held within 40 days of a judgment nullifying the validity of an election in an action based on Article 204 of the Law (ref. Article 109, item 4 and Article 34), Article 34 of the Law providing the term of 40 days should not be understood to be applicable where the validity of an election is nullified because of unconstitutionality and invalidity of the provisions of P.O.E. Law itself, since the provision for the term is understood to be directory and the provision for the term is only applicable in the event that the Law is constitutional and valid so that it is possible to hold a second election immediately. It is necessary to make a reasonable interpretation on the term of second elections in the event that the provisions of the Law are unconstitutional and must be amended to conduct a valid second election.

5. Our opinion is different from the majority opinion as is mentioned above and, in addition, we have some other doubts about it. This is the reason why we can not agree with the majority opinion.

(1) The majority opinion, indicating that the apportionment provision is unconstitutional, discusses about the validity of the election based on the provision without deciding on the validity of the provision itself. However, as long as the Appellant seeks to nullity the validity of the election not because it was not in conformity with the apportionment provision, but because the election was conducted under the unconstitutional and invalid provision, the validity of the provision should have been decided at the threshold.

(2) Even if it is assumed that the apportionment provision at issue as a whole is unconstitutional as the majority opinion indicates, the judgment nullifying the validity of the election at issue would disqualify the representatives for the No. 1 district of Chiba-ken in the future, but it would not have any effect on the qualification of the representatives for other districts. Although it is no doubt that the apportionment provision needs to be amended to hold a second election in accord with the Constitution in the No. 1 district of Chiba-ken, judgments nullifying the validity of elections in other districts would not by themselves cripple immediately the activities of the House of Representatives nor make the House incapable to amend the apportionment provision so as to accord with the Constitution, though the majority opinion apprehends this. Unless it is evidently found in this case that if the representatives for the No. 1 district of Chiba-ken might lose their seats by the judgment nullifying the validity of the election the House of Representatives would possibly become in short of the necessary quorum, it is not necessary to apprehend that the House of Representatives would be incapable to work in a legal sense. Although it is not desirable from the constitutional point of view for the House to be obligated to work without representatives for the No. 1 district of Chiba-ken where the validity of the election is nullified, the majority opinion which, evaluating the situation extraordinary, concludes the validity of the election should not be nullified is not proper, as we have criticized already. In short, even if the apportionment provision as a whole is deemed to be unconstitutional, the judgment in this case nullifying the validity of the election would not immediately bring about a result which the Constitution does not expect, and therefore the principle of the "Jijo-judgment" needs not necessarily be applied. For this reason we do not concur with the conclusion of the majority opinion to the effect that the election at issue is illegal but its validity should not be nullified. The apprehension of the majority opinion that the judgment nullifying the validity of the election might bring about a result which the Constitution does not expect is after all due to its view that the apportionment provision is as a whole unconstitutional.

(3) Seeing that the majority opinion concludes, resorting to the principle of the "Jijo-judgment", the validity of an election should not be nullified even if it was conducted under the unconstitutional apportionment provision under which the variance ratio of the maximum weight of each vote and the minimum one was almost 5 to 1, the majority opinion would not nullify the validity of elections even if the variance ratio were as much as or more excessive than this ratio. Although the majority opinion leaves a room to render a judgment nullifying the validity of an election, we doubt on what occasion such a judgment might be rendered. These unreasonableness of the majority opinion solely comes from the idea that the apportionment provision is inseparable.

So far we enumerated doubts about the majority opinion. From our points of view Article 98 of the Constitution shall be applied as it reads, so that we neither need to develop a complicated argument, nor make a difficult explanation on Article 31 of A.C.L. Law and the relationships between the Article and Article 219 of P.O.E. Law. Moreover, the judgment nullifying the validity of an election should not be understood to nullify it retroactively but to nullify it only prospectively. Therefore, it would not produce so much difficult legal questions, nor bring about serious political or social disorder.

6. According to our opinion mentioned above, the apportionment provision is unconstitutional so far as the No. 1 district of Chiba-ken is concerned and the validity of the election at issue conducted under the provision shall be nullified. Therefore, the Jokoku appeal has a good reason. We conclude that the judgment of the court below, which is different from our opinion, should be reversed and the demand of the Appellant seeking the nullification of the validity of the election at issue should be granted.

The dissenting opinion of Justice Seiichi Kishi is as follows:

I am not in accord with the majority opinion because I believe, for the reasons mentioned below, the validity of the election at issue is to be nullified, though the four elected representatives shall not lose their seats.

1. The first reference should be made to the ground of the majority opinion to the effect that this action should be subject to the procedure for litigations on the validity of elections based on Article 204 of P.O.E. Law.

While the Court has consistently held that the proceedings of the public litigation provided in Article 204 of P.O.E. Law is applicable to actions alleging invalidity of elections on the ground of inequality of the apportionment provision, the majority opinion in this case stresses that the guarantee of the equal right to vote comes from Article 14 of the Constitution, although such a point has not been so much stressed in the past precedents. Such a point of view of the majority opinion is correct seeing that in the Parliamentary Democracy the equality of the weight of each vote makes it possible for the real will of the people to be represented in the decision of the Diet but the majority opinion at the same time makes it clear that there exists difficulty to handle this case by way of proceeding of Article 204 of P.O.E. Law, which is a provision for a litigation to seek the nullification of the validity of an election on the ground of its failure to satisfy the requirements of election laws. That is, Article 204 of P.O.E. Law, under the prerequisite that the basic provisions of election laws are constitutional, provides that in the proceedings of the public litigation voters may allege the nullification of the validity of an election on the ground of its failure to satisfy the basic procedural requirements of election laws without regard to whether voters' rights were impaired, and may expect a second election to be conducted in accordance with election laws after such nullification. Such an action as this at issue, on the contrary, is brought by voters seeking the nullification of the validity of the election on the ground that the apportionment provision, the basic one of election laws, is unconstitutionally discriminating against voters in certain election districts. And an action like this case has a nature of both public litigation and Kokoku appeal litigation in the sense that the plaintiff here seeks not only remedy on behalf of the whole voters in the election district but also remedy for his own impaired rights as a voter. Therefore, it is essentially difficult to apply directly Article 204 of P.O.E. Law to this kind of action and a special legislative measures must be taken for this kind of action, which have not yet been taken in the present legal system. Then, the court must create a procedure based on the existing laws to effectuate the remedy because the court may not refuse to give the remedy for impairment of the fundamental constitutional rights of the people.

The majority opinion, following the precedents of this Court, tries to attain this purpose by resorting to Article 204 of P.O.E. Law with some modifications due to the special nature of this action, because it is the sole procedure to allege nullification of the validity of an election. However, I believe it proper to create a suitable procedure for this kind of action, taking into consideration as an important factor its nature of a Kokoku appeal litigation, with a clue of A.C.L. Law which is a general procedural law of the remedy for the right of the people against the administration. My idea cannot still evade the difficulty to keep the legal system theoretically harmonious, because this type of action, which is not expected by either P.O.E. Law or A.C.L. Law, cannot be covered by any already existing legal concept of administrative case litigation. But I believe it proper to have some creative way of thinking to overcome the barrier of the existing theory, in that the equal right to vote, a fundamental right of the people essential to the Parliamentary Democracy, is directly ensued from the Constitution.

Then, the first question is whether this kind of action can be organized as a Kokoku appeal litigation. Is it impossible to design a Kokoku appeal litigation taking the whole of a series of proceedings from the notification of an election to the confirmation of the elected to be one administrative disposition, or taking the confirmation of the elected, which is made by the Election Committee and is notified by the Election Administration Commission at the last stage of the proceedings to be one administrative disposition. In addition, is it impossible to consider in the following way? It is true that a law is not the object of the Kokoku appeal litigation in general, but I don't believe it absolutely impossible to take the apportionment provision itself to be an object of the litigation because the provision may well be considered similar to an administrative disposition in its nature and function. It is not unreasonable to confer the plaintiff standing of the Kokoku appeal litigation on the ground that the election conducted under the apportionment provision has really and concretely impaired his right of the equal franchise.

If such a Kokoku appeal litigation is acknowledged for this kind of action, it would not be necessary to resort to the logic of the majority opinion which on the one hand allows this action at issue to resort to the proceedings of Article 204 of P.O.E. Law to which Article 31 of A.C.L. Law is not applicable (Article 219 of P.O.E. Law) in the light of the nature of litigations on the validity of elections and on the other hand relies on the principle of Article 31 of A.C.L. Law, for the purpose to conclude the election valid notwithstanding the unconstitutionality of the apportionment provision. Granted that the proceedings of A.C.L. Law might not satisfy the requirement for speedy trial because the action usually goes up to the Jokoku appeal instance through the Koso appeal instance starting from the district court which has an original jurisdiction, the parties who want a speedy trial may consent for the Jokoku appeal against a judgment by the district court (Article 7 of A.C.L. Law, Article 360, paragraph 1, Article 393, paragraph 2 of the Code of Civil Procedure).

However, seeing that the Court has admitted to this kind of action to resort to the proceeding of Article 204 of P.O.E. Law for more than ten years, to dismiss the Appellant case on the procedural point of view without examining its merits would be against the trust of the people to the precedents, Moreover, there exists various problems to be considered by myself even if the nature of this kind of action which is similar to that of the Kokoku appeal litigation should be made much of. Accordingly, at present, I, preserving some doubts, would like to concur with the majority opinion in admitting to resort to the proceeding of Article 204 of P.O.E. Law as a form of this action.

2. The second reference is made to the majority opinion which concludes the Appendix No. 1 of P.O.E. Law, the apportionment provision of seats, to be inseparable and unconstitutional as a whole by making comparison only between the maximum weight of each vote and the minimum one. I, for the reasons below, believe the apportionment provision separable, but this belief is not necessarily related with my opinion to attach importance to the nature of this kind of action similar to the Kokoku appeal litigation. Yet, in case the validity of an election is questioned as a result that all parts of the Appendix No. 1 is held unconstitutional, I think the election should be held valid with the aid of the principle of Article 31 of A.C.L. Law for the same reason as the majority opinion develops in detail.

(1) Although precedents in the United States of America have employed a technique to hold an apportionment provision unconstitutional only by making comparison between the maximum weight of each vote and the minimum one when there is a variance in the weight of each vote among election districts under the apportionment provision, I, for the reasons below, doubt of resorting to the same technique in Japan. In the United States an action grounded on the impairment of the equal right to vote is not brought to seek the nullification of the validity of an election conducted under the specific apportionment provision, but to seek the declaration of the invalidity of the provision and the injection to enjoin from conducting an election under it. Concluding the provision unconstitutional, the court there usually sets up temporarily the electoral division and the apportionment of seats and orders to hold an election based on them. Thus, the court temporarily takes a quasi-legislative measures to solve the matter. On the contrary, in Japan an action is brought to seek the nullification of the validity of an already conducted election for the reason of the unconstitutionality of the apportionment provision. As a result of such an action the elected would lose their seats. I think such a difference in the purpose of the action and the function of the court between the two nations should not be disregarded. Essentially, equality is a relative concept and between a district having the highest value of one vote and another having the lowest value of one vote, there exists many election districts in which there is neither unreasonable discrimination nor problem of the unconstitutionality. It is not proper to hold the whole apportionment provision unconstitutional in relation to these election districts which have a reasonable number of seats within the proper discretion of the Diet. Therefore, in order to find whether the apportionment provision satisfies the requirement for equality, it should be examined whether any unreasonable discrimination might be found among election districts. The validity of the election and the apportionment provision of those districts which are not unreasonably discriminated should not be denied. In addition, even in relation to those districts which are discriminated unreasonably, the validity of an election should not be nullified only because the apportionment provision is unconstitutional.

(2) In order to make clear the pivotal questions, I want to take up two points of questions and refer to the following illustration.

Assuming that each electoral district from A to Z has equal number of voters and the weight of one vote in the district A with 4 representatives is 1, then the weight of one vote in the district B with 1 representative is 0.25 and the weight of one vote in each district from C to Z with 2 representatives each is 0.5. If it is assumed that in case the weight of one vote in one district is more than three times as much as another the apportionment provision is unconstitutional, the provision is mutually unconstitutional in the relation between the districts A and B because the weight of one vote in the former is four times as much as in the latter, while the provision is not unconstitutional in the relation between the district A and each district from C to Z because the weight of one vote in the former is only two times as much as in the latter. As a result an unconstitutional condition is found only in the relation between the district A which is discriminatingly advantaged and the district B which is discriminatingly disadvantaged. The apportionment provision is mutually unconstitutional in the relation between the districts A and B, not because each part of the provision for the district A and the district B is completely unconstitutional, but because the number of representatives for the district A is three times more than the district B. In other words, the ground for the unconstitutionality is that on the one hand the district A has as many as 4 - more than 3 - representatives and on the other hand the district B has only 1 representative. It is not improper to allot the district A as many as 3 seats. There is no reason to hold the apportionment of 1 seat for the district B unconstitutional, because 1 seat is a part of the seats to be properly allotted. The reasoning may be easily understood if it is taken into consideration that the unconstitutional condition would be dissolved by either taking 1 seat from the district A or giving more than 1 seat to the district B. As is already mentioned above, the concept of equality and inequality being a relative concept, the apportionment provision becomes unconstitutional so far as it brings about a relatively unreasonable discrimination (If in the illustration set above each district from C to Z has only one representative, a relatively unequal condition is found between the district A and each district from C to Z and as a result the whole part of the apportionment provision would be doubted of its constitutionality.). The apportionment has two features, one is a positive one to distribute a definite number of seats, the other is a negative one not to give seats more than a definite number. These features are very significant in the consideration of the constitutionality of the apportionment provision and the validity of the election conducted under it.

Then, I want to illustrate the validity of the election conducted under the apportionment provision which is partially unconstitutional. As has already been explained, a part of the provision in relation to the district A is unconstitutional as long as it apportions 4 seats, more than 3 seats by 1. In relation to the district B the positive feature of the provision to apportion 1 seat is not unconstitutional, but the negative feature of the provision to limit the number of the seats to 1 disadvantages the district in comparison with the district A and the provision becomes unconstitutional so far. The validity of the election conducted under the provision should be understood as is set forth below. That is, the election in the district A is illegal in that it was held under the unconstitutional apportionment provision which distributes too many seats, and the election in the district B is illegal in that it was conducted under the unconstitutional apportionment provision which distributes too small number of seats. The validity of the election in the district A should be nullified in the sense that the result of the election as it was should not be maintained, and the validity of the election in the district B should be nullified in the sense that a second election which will be conducted under an amended apportionment provision in accord with the Constitution might possibly bring about a different result. However, the apportionment provision is constitutional as far as it apportion 3 seats for the district A and the apportionment of 1 seat for the district B should not be invalidated seeing that the provision in relation to the district B is unconstitutional solely because it does not apportion more than 1 seat, so that the elections in both district should be held valid to this extent for the purpose of realizing the will of the voters as far as possible to the extent the Constitution permits. For these reasons the effect of the election should be maintained with regard to the top three elected candidates in the district A and one elected candidate in the district B, Then, in case the number of the seats for the district A is reformed to 3 a second election would not be necessary in the district either A or B, and in case the district A keeps 4 seats while the number of the seats for the district B is increased to 2 a second election would be necessary only to elect one representative left in each district. Thus, a reasonable solution is found.

This kind of relationship which comes from a point of view affirming the separability of the apportionment provision is found between an unreasonably advantaged district and an unreasonably disadvantaged district. The aforementioned understanding on the validity of the election would be helpful to prevent from enlarging unreasonably the extent of the nullification of the validity of an election and the disqualification of the elected candidate.

A relative comparison of the weight of each vote in each district would make it evident that in districts arrayed in the middle of the district with the highest weight and the district with the lowest one there is no problem of the unconstitutionality. Even in relation to the districts where the weight of each vote is unconstitutionally unequal, the apportionment provision need not be held unconstitutional as a whole. Then, the situation that the Diet is incapable of its organization, as the majority opinion apprehends, would possibly be evaded.

The dispute whether the apportionment provision is separable or inseparable seems to me endless. I believe it proper to regard the provision separable in the sense mentioned above for the purpose to guarantee a judicial remedy for the unconstitutional state of affairs and to find a reasonable solution for this kind of action. The view to regard the provision separable would enable the Diet to dissolve inequality at its discretion by taking some seats out of unreasonably advantaged districts and distributing them to unreasonably disadvantaged districts without changing the total number of seats, or by temporarily increasing number of seats for unreasonably disadvantaged district as has once been done by the Diet.

Especially, this kind of problem should be solved by the Diet in its authority and responsibility, and according to my opinion it would not be ineffective for the remedy of the right of the people that the court rules the provision unconstitutional and expects the Diet to rectify it.

3. As for the case at issue, I would like to make a relative comparison of the weight of each vote in each election district according to the number of seats and the number of voters per delegate in the table attached to the judgment of the court below. Then, it is evident that the weight of one vote in the No. 1 district of Chiba-ken with 4 seats is only 0.21 of the weight of one vote in the No. 5 district of Hyogo-ken with 3 seats which is the highest weight of 1.00, while that of the No. 3 district of Kagoshimaken with 3 seats is 0.97 and that of the No. 3 district of Ishikawa-ken with 3 seats is 0.93, I, almost in accord with the majority opinion regarding the problems of inequality of the weight of each vote in the apportionment and of its unconstitutionality, believe that if the variance of the weight of each vote stated above is examined in the light of the criterion set up by the majority opinion the apportionment for the No. 1 district of Chiba-ken at the time of the election shall be ruled unconstitutional because too small number of seats to satisfy the constitutional requirement for equality of the right to vote are apportioned. In other words, the apportionment provision in relation to the No. 1 district of Chiba-ken is unconstitutional insofar as it does not distribute enough seats to be constitutional, so that the election there conducted under the provision is illegal and its validity should be nullified, though with regard to the election of the 4 elected candidates the effect of the election should be maintained. Accordingly, the validity of the election there shall be nullified and it shall be declared that the elected candidates by the election do not lose their seats. Therefore, the judgment of the court below holding the election legal to dismiss the demand of the Appellant on the ground of a different opinion from mine is illegal in that it failed to interpret and apply the Constitution correctly and the Jokoku appeal has a good reason to this extent. The judgment of the court below shall be altered to render a judgment to this effect.

The dissenting opinion of Justice Buichi Amano is as follows:

Some electors in the No. 1 district of Chiba-ken at the general election on December 10, 1972 has brought the case at issue in accordance with Article 204 of P.O.E. Law, a provision of a litigation on the validity of an election, against the Chiba-ken Election Administration Commission contending that the validity of the election there is to be nullified because it was conducted under the unconstitutional apportionment provision of P.O.E. Law. Essentially a litigation based on Article 204 of the law is not a so-called legal action with regard to concrete rights and duties. It is in the nature of the public litigation (ref. Article 3 of the Court Organization Law, Articles 5 and 42 of the Administrative Case Litigation Law), and is specifically brought under the court's jurisdiction by statutes for the purpose to correct dispositions of the election administration commission which are not in accord with election laws. Such a litigation is permitted only when a judgment may be rendered nullifying the whole or a part of the validity of an election on the ground that the election is "not in conformity with election laws" and its illegality is "so gross as to affect the result of the election" (Article 205, paragraph 1 of P.O.E. Law). In addition, it is beyond doubt that the main purpose of this kind of litigation under the present statutes is not to confirm the invalidity of the election laws or of the election conducted under them, but to nullity the validity of the election in order to correct the Election Administration Commission's illegal dispositions and to obligate it to conduct a second election. Therefore, the violation of "the election laws" which may be contended in the litigation must be such that could be corrected by the Election Administration Commission of the election district by applying election laws correctly and by conducting a second election properly. In this type of litigation it is not permitted to demand nullifying the validity of an election on the ground of such illegality that may not be corrected by the Election Administration Commission itself and therefore is unreviewable by the court. In providing the litigation mentioned above P.O.E. Law does not contemplate the case for nullification of the validity of an election solely on the ground that the apportionment provision of P.O.E. Law is unconstitutional and void, because in case the apportionment provision is unconstitutional, the Election Administration Commission is unable to conduct a second election properly until the Diet amends the apportionment provision in accordance with the Constitution. For this reason the action at issue is not allowed under Article 204 of P.O.E. Law, and since there is no other provisions appropriate for this action, the case should be dismissed as illegal.

However, the majority opinion contends that the litigation based on Article 204 of P.O.E. Law is the only means in the present legal system for electors to allege the illegality of an election and that without which electors cannot find any way of litigation to seek for correcting P.O.E. Law by alleging its unconstitutionality. The majority opinion, then, concludes, by means of interpretative extension of Article 204 of P.O.E. Law, the proceedings of the Article is applicable to the action at issue saying, "In the light of the constitutional requirement that the people should be equipped with as many as possible means of remedy against acts of government impairing fundamental human rights, it is not a correct understanding of the Law that it specifically forbids to allege inequality of the franchise under the apportionment provision as a ground of the nullification of the validity of an election in the proceedings of the litigation based on Article 204." Moreover, the majority opinion goes on to say that, in the event that it is permitted to allege the nullification of the validity of an election on the ground of the unconstitutionality of the apportionment provision in the litigation based on Article 204 of P.O.E. Law, Article 31, paragraph 1 of the Administrative Cases Litigation Law (hereinafter referred to as A.C.L. Law) which is a general law with regard to litigations on the validity of administrative dispositions, shall be taken into consideration in deciding whether the validity of an election should be nullified whenever the apportionment provision is found unconstitutional, because it is not limitedly applicable to the case of revocating administrative dispositions, but is understood to be based upon the fundamental principle of law. The majority opinion concludes that in this case there is room to render a judgment as to evade an improper result of nullifying the validity of an election by applying the fundamental principle and that so-called "Jijo-judgment" is needed.

Seeing that the right to vote is the basis of the Parliamentary Democracy as a fundamental right to guarantee the people to participate in government and the Constitution requires equality of the substance of the franchise, namely, equality of the weight of each vote, it is quite agreeable that the majority opinion admits the necessity of affording an opportunity to argue about the constitutionality of an election in a litigation. But the majority opinion at the same time admits that litigations regarding elections which are acknowledged in the present legal system are in the nature of the public litigation. Then, one could not bring to the court any type of litigation regarding elections but is provided in P.O.E. Law, because Article 42 of A.C.L. Law reads that a public litigation may be filed "in such a case as specified in laws". And a litigation based on P.O.E. Law is permitted only when the election has an individual defect of violating P.O.E. Law and an immediate second election is possible, as I have noted above.

Nonetheless, the majority opinion, admitting that the election at issue has a general defect of being held under the unconstitutional P.O.E. Law, which could not be rectified without an amendment of the law, maintains that the action at issue may be based on Article 204 of P.O.E. Law. Moreover, it takes it for granted that the principle of Article 31 of A.C.L. Law is applicable to this case, although Article 2l9 of P.O.E. Law provides Article 31 of A.C.L. Law inapplicable to an action based on Article 204 of P.O.E. Law. Granting that this logic of the majority opinion is due to "constitutional requirement" or "legal points of view of high level", it is by no means a faithful attitude of interpretation of law for a disposition of the litigation resorting to Article 204 of P.O.E. Law. This mistake of the majority opinion is thought to be ensued from the fact that it admits of applicability of Article 204 of P.O.E. Law to this action by persisting in the proposition that in the present legal system a certain channel must be found to a litigation seeking for the nullification of the validity of an election on the ground of unconstitutional inequality of the weight of each vote, namely, the unconstitutionality of P.O.E. Law itself which is completely different from a defect due to voters, candidates or the Election Administration Commission in a concrete election.

On looking back the precedents of the Supreme Court, it is easily found that it has admitted this kind of litigation may be based on Article 204 of P.O.E. Law in relation to elections of Councillors from each election district (ref. grand bench judgment upon Case (O) No. 422 of 1963, decided on Feb. 5, 1964, Minshu vol. 18, No. 2, p.270; the third petty bench judgment upon Case (O) No. 655 of 1963, decided on May 31, 1966, Saibanshu (Civil) No. 83, p. 623; the first petty bench judgment upon Case (Gyo Tsu) No. 102 of 1973, decided on April 25, 1974, Saibanshu (Civil) No. 111, p. 641). The majority opinion has followed the precedents in relation to the general election of the member of the House of Representatives adding some explanations. However, I, from my point of view, believe the precedents should be overruled, in that they failed to interpret Article 204 of P.O.E. Law correctly by admitting a litigation for nullifying the validity of an election on the ground of the unconstitutionality of the apportionment in each election district to resort to the proceeding based on the Article. Each precedent has in relation to the election of Councillors dismissed the case on its merits without setting any objective yardstick of its decision, stating only that the apportionment of seats is a matter of the Diet's legislative policy and that the degree of inequality existing in each case still remains within the realm of legislative discretion and is not so serious as to produce a constitutional problem. It is true that the majority opinion in this case develops a variety of arguments about the apportionment of seats at the general election and indicates its idea to invoke the principle of the "Jijo-judgment" after finding the apportionment provision unconstitutional, but the majority opinion abstains from setting any clearcut yardstick of its decision, and, referring to the principle of Article 98 of the Constitution, tries to evade the nullification of the validity of the election by means of the "Jijo-judgment" because of the seriousness of the effect of the decision. It may properly be doubted what new influences the majority opinion has produced besides those of the precedents in a substantial sense. The dissenting opinions, which are different from the majority opinion in that they conclude that the degree of the inequal weight of each vote must be examined in each election district in order to decide the constitutional defect of the apportionment provision and the validity of an election is to be nullified in relation to each election district, should share my doubt about the reasonableness of the majority opinion so long as they agree with the majority opinion in resorting to Article 204 of P.O.E. Law. In short, these opinions themselves prove that the problems which are proposed as objects of judicial review in the opinions should be solved legislatively in the responsibility of the Diet in order to attain equality of the weight of each vote.

I cannot help hesitating to stick to a contradicting position to the accumulated precedents which seem to be established. Therefore, I do not want to blame the plaintiff for resorting to Article 204 of P.O.E. Law in accordance with the precedents. However, when I think about the constitutional importance of judicial review and the function and effectiveness of the judgment upon this case, I cannot concur with any conclusion or logic of the majority opinion, other dissenting opinions in this case or the court below because they all are grounded on a misunderstanding of Article 204 of P.O.E. Law. My conclusion is to reverse the judgment of the court below and to dismiss the claim without deciding on the merits.

Justice Tomokazu Murakami
Justice Ekizo Fujibayashi
Justice Masao Okahara
Justice Takeso Shimoda
Justice Seiichi Kishi
Justice Buichi Amano
Justice Yoshikatsu Sakamoto
Justice Yasuo Kishigami
Justice Kiyoo Erikuchi
Justice Kiichiro Otsuka
Justice Masami Takatsuji
Justice Yutaka Yoshida
Justice Shigemitsu Dando
Justice Yuzuru Motobayashi
Justice Kosato Sekine is unable to sign and seal because of his retirement.
Presiding Judge, Justice Tomokazu Murakami