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Hatoyama Battles to Wrest Control Power from the Bureaucrats

Rajaram Panda was Senior Fellow at the Institute for Defence Studies and Analyses, New Delhi. Click here for profile
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  • March 02, 2010

    One of the major policy objectives of the Hatoyama government has been to curb the unbridled power of the bureaucracy and give the power of policy making to the elected representatives. While it is too early to say whether Hatoyama will succeed in this effort, his government has indeed initiated the process of restructuring the bureaucratic structure.

    The Cabinet endorsed a bill on 19 February to revise the law governing national public servants, which has now been submitted to the Diet for consideration. According to the bill, a Cabinet personnel bureau headed by a parliamentary deputy chief Cabinet Secretary, a senior vice minister or a person picked by the prime minister, will be established within the Cabinet’s secretariat to centralise personnel management. The new bureau will comprehensively manage appointments of senior officials at all government offices. The bill is designed to revise the national civil service law. Under the bill, the government plans to formulate a cross-sectional list of candidates for senior officials at all government ministries and agencies, and make appointments from the list.

    The Democratic Party of Japan-led government wants to clear the bill by the end of March 2010 so that the new bureau in the Cabinet secretariat can begin work from 1 April 2010. Though the administration’s plan to implement the new system empowering the lawmakers to take the initiative in policy making seems laudable, the government has to take care that the new system is used in a fair manner and bestow due consideration to the role of the bureaucracy.

    If the bill is passed, the chief Cabinet secretary will test the competence of candidates for high-ranking posts, including people recommended for such posts by Cabinet ministers and those who have applied via open recruitment. Different ministries can draw bureaucrats from the central pool. Even administrative senior ministers, bureau chiefs and department chiefs in all ministries and agencies can be drawn from this pool. The Cabinet ministers can have a large choice of competent bureaucrats whom they can pick if found suitable to their ministries but this has to be done in consultation with the Prime Minister and the chief Cabinet Secretary.

    As regards maintaining the hierarchy, administrative vice ministers, bureau chiefs and department chief will be treated at par. In the new system, a vice minister or bureau chief can be made a department head without the move being deemed a demotion. The reform measures, however, do not empower the politicians to control all the organs of government. The Cabinet will still be obliged to respect the independence of neutral entities such as the Supreme Public Prosecutors Office, the National Police Agency, the Board of Audit and the National Personnel Authority.

    Will the new system be completely transparent and objective? There are potential holes that ought to be plugged. True, Cabinet ministers will enjoy power over appointment and evaluation of high-ranking bureaucrats but who will be accountable if the assessment of performance of current bureaucrats and the qualifications of hopeful candidates are not biased and prejudiced? There is no provision which will do away with possible sycophancy in the bureaucracy which might create an environment convenient for executing policy initiatives in the way they like.

    Indeed, it is a quirk of history that Japan, after passing through a tumultuous journey through historical experiences for centuries during which power alternated between the military and civilians, finally found some semblance of democratic norms, not born indigenously but foreign-imposed, after its defeat in World War II. In what could be called Japan’s second “opening” more than half a century after that debacle, Japan’s political masters did not fear a relapse of their possible subordination to the military. But what has evolved is a structure in which the bureaucracy has come to enjoy enormous power during the over-five decade-old rule of the Liberal Democratic Party. The DPJ wants to correct what it perceives has been a historical wrong. The party feels that since people elect the representatives to the Diet, they should have the final say in governance and the role of the bureaucrats is only to implement the decisions taken by the elected leaders.

    In the evolution of political institutions, Japan’s case is unique vis-à-vis some countries in Europe. It has a Constitution, which is not its own, but “imposed” upon by the US and which outlaws wars of aggression and formally repudiates the maintenance of military forces for that purpose. France made an unsuccessful attempt to renounce war as a means of settling international dispute in 1791. After the war-renouncing Kellogg-Briand Pact of 1928, France, Brazil, Italy, and Germany all wrote constitutions that renounced war as an instrument of policy. But history proved to be different. In contrast, Japan is in a completely different league altogether. In the Japanese system, the military has remained subordinate to the bureaucracy, and the bureaucracy has also at the same time succeeded in marginalizing the political leaders. Now, the political masters have begun to assert control over the bureaucracy.

    The Cabinet Legislation Bureau (CLB) or Naikaku Hosei Kyoku, consisting of career bureaucrats, has remained all powerful everywhere in Japanese governance. So far, the interpretation of the Constitution, especially Article 9 – the peace clause that repudiates the use of force as a means of settling international disputes - has been the exclusive domain of the bureaucrats. In the 1950s the CLB ruled the constitutionality of the Self Defense Forces. It has interpreted Japan’s collective security; whether visits by Cabinet ministers to the Yasukuni shrine violate the constitutional separation of church and state, whether Japanese troops can be sent abroad, etc. In fact, Japan’s defense policy has been exclusively interpreted by the bureaucrats and the role of politicians has been secondary.

    The CLB has been the Prime Minister’s in-house lawyer and a check on Diet legislation. Though the views of the CLB are not legally binding, most of the draft bills cannot become laws without the CLB vetting them. The political situation in Japan after the War has been such that though the Diet remains in theory the “sole law-making body” and the “highest organ of the state power” as per Article XLI of the Constitution, the reality is that governance is characterized not by political control but by bureaucratic subordination. No wonder, a former President of Japan’s National Defense Academy, Nishihara Masashi, has observed that postwar political leaders, strongly concerned about the lack of civilian control over prewar and wartime military decisions, have often taken resort to more rigorous legalistic approaches though often without success.

    So far the CLB has enjoyed greater independence unmatched by any other administrative agency in Japan, even though it is formally an advisory organ within the Prime Minister’s secretariat. Even the role of CLB’s Director General, always a career official, in Cabinet formation has been important.

    During the Occupation period, the SCAP had realized the role of extra-constitutional authority of the Legislation Bureau (LB), as it was called during the Wartime, and disbanded completely. But then Prime Minister Yoshida Shigeru reestablished the LB after restoration of sovereignty in 1952. It became a government agency within a government agency, slowly accumulating power over the years. Unlike in other administrative units, members of the CLB do not have to face any entrance examination. There are about 24 senior officials in the CLB drafted from different ministries with 15 to 20 years of experience. Therefore, they are perpetually cultivated by the ministries from where they were originally drawn to protect their interests, endowing them in the process with enormous power. The normal term of the CLB appointees is five years and most of them enjoy two or more terms. In the Japanese bureaucratic structure, the CLB is often seen as a sort of amakudari (descent from heaven), a sort of elite bureaucrats. Though the CLB’s role is advisory, it enjoys enormous power as all bills, regulations, Cabinet orders and treaties have to be cleared by it from constitutional and legal points of view. Therefore its decisions are the government’s “formal seal of approval”.

    Since the first Gulf War, the CLB’s interpretation of the Constitution and its role in the subsequent dispatch of SDF troops in non-combat roles to Iraq and Afghanistan have created some fissures with the political leaders. In particular, Koizumi Junichiro tried to clip the unbridled power of the CLB but was not very successful in dislodging it from its unassailable fortress. Even Nakasone Yasuhiro during his tenure as Prime Minister overruled the CLB at times. But the powerful CLB has learnt how to satisfy a particularly demanding prime minister.

    CLB officials are cognizant of their privileged position in the Japanese administrative set-up and likely to protect them from erosion. They are likely to defend and foil the efforts of the DPJ government to bring about sweeping administrative reforms, particularly to curtail the power of the bureaucrats. With Hatoyama’s determination to wrest policymaking power from bureaucrats in full swing, Japan is likely to witness an intense battle between the political masters and the powerful bureaucrats for supremacy. If the DPJ succeeds in its efforts to bring about reforms in the bureaucracy, and in the process restore the power of governance to the legislators thus leaving the role of implementation to the bureaucrats, Hatoyama would have left a mark in Japan’s post-War history as a reformist prime minister.