2009/06/27

Conflict Resolution in Legislative Process:
How It Happens in Japan

Takehisa Nakagawa, Kobe University School of Law
Presented at Ewha Womans University
June 27, 2009

1Introduction(1 ) Two Forums of conflict resolution in legislative process Bill-deliberation in the Diet
 Bill- formulation outside the Diet
The Constitution of Japan and the Diet Law provide onlyfor the deliberation process in the Diet while certain
customary practice has been formed with regard to the billformulation process.
My talk will focus on the latter, especially the formulation
process of the Cabinet-made bills (not those introduced bythe Diet members which are quite few).
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Introduction(2) Viewpoint of a Legal Scholar
The very best persons who can talk about the practice of suchbill-formulation process should be bureaucrats or at least politicaltheory scholars.
I, as a public law student, can only present “a picture fromoutside” about what is happening in the legislative process. The
picture is based on my own experience of having advised theGovernment for the past 15 years.
I will also try to evaluate the current practice from public law
perspectives.

3I. Overview of Legislative Process(1-1) Parliamentary System
The Diet is composed of the Lower House (House of theRepresentatives) and the Upper House (House ofCouncilors).
The Diet nominates the Prime Minister from among theDiet members. The Premier appoints other members of theCabinet at his/her will.
The Lower House may make a resolution to the effectthat the Cabinet should leave. In such case, the Prime
Minister must either resign with all the other Cabinet
members or dissolve the Lower House for a general election.
The Premier also may dissolve the Lower House at any time.
422009/06/27I. Overview of Legislative Process(1-2) Proceedings for lawmaking at the Diet
The Constitution basically provides that the bill, when affirmedin both Houses, becomes a law.
Each House first considers the bills in one of its committees.
The committee deliberation is more extensive and intensive thanthe House-wide discussion for final votes.
Although the Cabinet has no formal veto power, it is perhaps
impossible for the Diet to pass bills opposed by the Cabinet.
The Constitution nor any statutes provide for nothing about
how the bills should be formed.
5I. Overview of Legislative Process(2) Administrative StateIn the administrative state (regulatory state and welfare stateof the 20th century), more and more bills, which tend to betechnical in their nature, are originated from among thebureaucrats Most of the bills in Japan are introduced by theCabinet.
The bill-formulation process in the administrative state canbe described as how bureaucrats negotiate with each other(conflict resolution within the bureaucracy) and with outside
players (conflict resolution with, e.g., Diet members). This is thefocus of my talk today.
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I. Overview of Legislative Process(3) Roles of Political Parties
The LDP (Liberal Democratic Party) has occupied themajority seats in both Houses since 1955, and has been mostinfluential on Prime Ministers’ nomination.
This is called “the 1955 system”
Under the 1955 system, once approved by the LDP, bills areeasily expected to be made into law.
Thus, there has been formed a customary procedure. The
custom goes that any bill to be introduced by the Cabinet mustfirst be approved by the LDP.

7I. Overview of Legislative Process(3) Roles of Political Parties –continued
For the bureaucrats, it is a very convenient way to accelerate
the Diet proceedings.
For the LDP, it is a very convenient way to exert its
influence on the bills. The LDP itself has various different
opinions within it on policy issues. Such conflicts are resolved,
not in the House, but rather in the bill-formulation process
through discussion with bureaucrats.
The Minority parties, on the other hand, can basically attack
the bills only in the House after their introduction.

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I. Overview of Legislative Process(4) End of the 1995 system
It is widely believed that the 1995 system has ended in the1990’s when the LDP lost its dominant control in the Houses. Twonon-LDP Cabinets (Hosokawa and Murayama) wereconsecutively formed in mid-1990’s.
Though we have again LDP Cabinets these years, theDemocratic Party (and its allies) now controls the Upper House.
Thus, the Diet discussion has much more importance than before.
However, the LDP approval procedure still exists, and deservesattention.

9II. Formulation Process of Cabinet-Bills
Two Forums for bill formation
Conflicts within the Bureaucrats, especially technical issues requiringexpertise
Conflicts within the Political Parties (LDP), especially issues having
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II. Formulation Process of Cabinet-Bills(1) Conflict resolution within the Bureaucrats (Kasumigaseki)
Most bills originate from the ideas of bureaucrats (especially,section chiefs who are in charge of certain fairly limited policyareas) while “big bills” arise through the top down initiative,
such as the Prime Minister, and the Diet’s “resolutions added theLaw” (mostly by the minority political party’s initiative).
Either way, any idea of making of bills must have
Kasumigaseki-wide acceptance. Other wise, the Cabinet would
not decide to introduce such bill to the Diet.

11II. Formulation Process of Cabinet-Bills(1) Conflict resolution within the Bureaucrats (Kasumigaseki)“Study-Group Sessions”:
Typically, the first thing such bureaucrats who are in charge ofmaking bills (section chiefs and his/her staff) would do is to set up a
study-group, often composed of outside experts (mostly university
professors ). Any other bureaucrats who may have any interest can seethe meetings.
The study group is to make researches on various issues andproblems regarding the bill. Outside the study group sessions,relevant bureaucrats may talk with each other about possible conflicts.
It is rather a forum to find what conflicts could ever exist
regarding such bills.
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II. Formulation Process of Cabinet-Bills(2) Conflict resolution outside the bureaucrats“Councils”:
If the bill contains important policy issues, and can be
attacked from various parts of the society, the bureaucrats
typically ask a relevant Council (or set up a new Council and askit) for discussion to make an outline of the bill.
Each Ministry and agency has one or more Councils todeliberate on “important issues” carefully. Members are: experts(professors, etc.), media, business, labor, NGOs, and otherrelevant people.
Relevant bureaucrats can only make presentations before theCouncils or see the discussion as observers.

13II. Formulation Process of Cabinet-Bills(2) Conflict resolution outside the bureaucrats“Councils”:
Councils are expected to deliberate on matters from “a highangle” to make a reasoned decision on how the bills should be.
Councils are expected to input viewpoints of various partsof the society and also to reach a conclusion with reasoned
explanation in face of various conflicts they detected.
Councils’ meetings are open and every discussion isrecorded and published later.
The bureaucrats in charge of the bill serves as theadministration of the Councils. They provide various help
(sometimes informal direction) to the Council
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II. Formulation Process of Cabinet-Bills(2) Conflict resolution outside the bureaucrats“Negotiation with relevant Departments & Agencies”:
During the Council’s discussion, the bureaucrats who serves
as its administration must negotiate with other departments andagencies who may have interest in the bill.
Whenever the Council is to decide on important issues, theadministration is expected to resolve any conflicts with theircounterparts of other Department and agencies.
The administration also must start negotiation with theLegislation Bureau (in the Cabinet) about the drafting of the bill.

15II. Formulation Process of Cabinet-Bills(2) Conflict resolution outside the bureaucrats“Negotiation with the LDP”:
During the Council’s discussion, the bureaucrats who serves
as its administration must negotiate with the LDP, hopefully
before the Council is to decide on important issues.
The LDP has “Policy Research Council” consisting of many
“divisions” and “research commissions.” The Council’s
administration visits relevant divisions to explain how thediscussion in the Council is going, and to take questions andopinions from the LDP Diet members.
Draft bills will be explained in the same way for approval.
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III. Some Observations
To sum up:a) Formulation process of Cabinet-bills is a series of very important
forums of conflict resolution. It is composed of study-groupsessions, councils proceedings, LDP negotiation, negotiation
with relevant other departments , and the Legislation Bureau
negotiation. At the center of this relentless process, a few
bureaucrats work as conflict mediators and drafters of the bill.
b) Such formulation process can be divided, functionally, into: (1)procedures to input expertise and rationality (study-group,councils, and negotiation within the bureaucracy); (2)procedure to make the bill responsive to various needs insociety (councils, LDP negotiation, negotiation withinbureaucracy); (3) proceeding to ensure legal rationality(Legislation Bureau).
17III. Some Observations
Discussion 1: Roles of Bureaucrats and Politicians
Bureaucrats as conflict manager, rather than policy maker.
 Bureaucracy itself represents various interests, viewpoints,and fields of expertise; thus, negotiation within thebureaucracy is very important, sometimes becomes veryharsh.
 The LDP has been influential in the formulation process ofthe bills while minority parties could sometimes exert someinfluence in the deliberation process in the Houses.
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III. Some Observations
Discussion 2: Good Democracy?
Formulation process of the bills seems more important thandeliberation in the Diet. Is it good?
 The LDP negotiation and its bill-approval procedure can beunderstood as a cost-effective procedure both for thebureaucrats and the LDP.
 As far as the LDP is a catch-all party, at least during the 1995
system era, the LDP negotiation process can be described as
an example of participatory democracy.
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III. Some Observations
Discussion 2: Good Democracy? -continued
However, if the LDP only represents partial interests, theLDP negation and bill-approval process would end up as acapture mechanism. The process shall be seen as unfair
because it works as a tool incorporating special interest
advocacy in the bill-formulation process.
If this is the case, such arguments should arise that thebureaucrats should be banned from negotiating with politicalparties, or should be forced to have negotiation with all thepolitical parties.
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2009/06/27III. Some Observations
Discussion 2: Good Democracy?
According to the Constitution, Cabinet-bills must beauthorized by the Cabinet before being introduced to theHouses. The Cabinet (Prime Minister) has politicalresponsibility for introducing their hand-made bills.
 From this viewpoint, the LDP negation and its bill-approval
process can simply be an expression that the Cabinet hasabandoned its executive power with regard to bill
formulation. How can a political party be an agent of theCabinet, even though such party politically controls thePrime Minister?
21III. Some Observations
Discussion 3: Influence of “Judicial Bureaucrats”“Judicial bureaucrats” oftentimes play important roles in theformulation process of Cabinet-bills.
 “Judicial bureaucrats” are judges and prosecutors who work,as part of the routine rotation managed by the General
Secretariat of the Supreme Court or the High Prosecutors
Office, either in the Ministry of Justice, Legislation Bureau,or some of the councils.
 “Judicial bureaucrats” are trying to stop “weird law” from theirviewpoints.
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III. Some Observations
Discussion 4: Too Slow and Too Conservative?
Multi-facet procedures for formulation of Cabinet-bills may
have slowed down Japanese lawmaking and have produced
too conservative laws.

However, the end of the 1995 system is now bringing about achange. Though the same proceedings are still used, somelaws are very quickly made while there is some critique thatthose laws are immature.

What is the Korean experience to balance quickness anddeliberation of lawmaking process?

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