Die Auflösung des Parlaments nach deutschem und japanischem Recht

Abstract

Both the German Bundestag (Federal Parliament) and the Japanese shugiin (衆議院, House of Representatives) were dissolved during this past summer. The Parliament of neither country has the right of self-dissolution, but in both cases dissolution is possible under the Constitution.

Under the German Constitution, the dissolution of the German Bundestag is only possible in two exceptional cases and only by following strict procedural and substantive law requirements. The most relevant case is when a motion of the Chancellor for a vote of confidence is not supported by the majority of the members of the Bundestag; when this happens the Federal President, upon the proposal of the Federal Chancellor, may dissolve the Bundestag. In 1983, when former Chancellor Helmut Kohl used a vote of confidence to pave the way for new federal elections, the Federal Constitutional Court demanded as an unwritten requirement a situation of political instability.

In its August 2005 decision, the Federal Constitutional Court held that the question as to whether a situation of political instability exists rests within the broad administrative discretion of the Chancellor. The Court argued that the nature of this erosion and withdrawal of confidence cannot be easily presented and determined in legal proceedings. This new decision of the Federal Constitutional Court therefore strengthens the position of the Chancellor with regard to the dissolution of the German Parliament. A (judicial) review by the Federal Constitutional Court of such a dissolution by the Federal President would be virtually impossible under this new interpretation.

The Japanese Constitution also allows for the dissolution of the House of Representatives when a vote of confidence fails. In Japan the relevant constitutional question is whether and when the Cabinet can dissolve the Lower House outside of a vote of confidence. The Constitution neither specifies that the Cabinet has the right to dissolve the House of Representatives nor does it mention any requirements under which such a dissolution is allowed. Nevertheless, the majority opinion is that dissolution based on Articles 7 and 65 of the Constitution is possible.

The validity of a dissolution of the House of Representatives is seen as outside the scope of judicial review in Japan because it is viewed as a political act which cannot be judged by the courts. The Emperor technically performs the dissolution, but has no discretion over the decision or the process.