Subcommittee on Ideal Constitution as Supreme Law (Third Meeting)

Thursday, April 3, 2003

Meeting Agenda

Matters concerning the role of the Constitution as the supreme law (procedures for revisions of rigid constitutions - constitutional revision procedures and referendum systems in each nation)

After statements were heard from Professor TAKAMI Katsutoshi and Professor NAGAO Ryuichi concerning the above matters, questions were put to them; this was followed by discussion among the members.

Informant

  • TAKAMI Katsutoshi, Senior Specialist, Politics and Parliamentary Affairs Research Service, Research and Legislative Reference Bureau, National Diet Library; Professor Emeritus, School of Law, Hokkaido University
  • NAGAO Ryuichi, Professor, College of Law, Nihon University

Members who put questions to Prof. TAKAMI and Prof. NAGAO

Main points of Prof. TAKAMI'S statement

 1. Categories of Regulations for Revising Constitutions

>> While the procedures for revising constitutions vary from country to country, they are normally based on frameworks satisfying the imperatives of maintaining (a) constitutional stability and (b) the principle of popular sovereignty.

 >> These two imperatives take various formats in different countries' constitutions, and the regulations governing the revision of constitutions may be categorized as follows, based on the bodies responsible for determining and approving the constitutional revisions.

 (1) Constitutions Revised by National Assemblies

>> Constitutions that are revised by national assemblies comprise (a) those whereby revisions are, in principle, adopted by a single vote in the national assembly (e.g., Germany; in many cases these are conducted in combination with national referendums); and (b) those whereby the national assembly must vote for the proposed revisions more than once. This second category (b) is further broken down into [1] constitutions whereby revisions must be approved in multiple votes by the same chamber of the national assembly (e.g., Italy and Ukraine), and [2] constitutions whereby revisions must be approved in votes by different chambers of the national assembly (e.g., France and Belgium).

 (2) Constitutions Revised by National Referendums

>> Constitutions that are revised by referendums are based on the concept that the right to establish constitutions (sovereignty) resides in the people alone, and that the national assembly which only has legislative powers is not entrusted with constitutional revision rights. These include constitutions (a) whereby referendums are mandatory for revision (e.g., Japan); (b) whereby referendums are required only in certain cases (e.g., Sweden); and (c) whereby referendums must take place in combination with other procedures (e.g., Austria).

 (3) Constitutions Revised by Special Constitutional Assemblies

>> Under this approach, which is also based on the concept that the right to establish constitutions resides with the people, constitutional revisions are debated and adopted via conventions especially called together for that purpose (e.g., United States of America).

 (4) Federal Constitutions Revised by Majority Agreements of their Constituent States

>> This approach is unique to federal systems (e.g., United States of America).

 2. History of Article 96 of the Japanese Constitution

 (1) The Enactment of Article 96

>> The people were excluded from the process of constitutional revision under the procedures stipulated by the Meiji Constitution.

 >> The Matsumoto Committee examined the introduction of a referendum system, and the proposal prepared by the private-sector constitution research committee included a national referendum system. Based on this, the first draft prepared by the GHQ called for the obligatory holding of an extraordinary session of the Diet every 10 years to examine constitutional revisions, reflecting the "theory of generational sovereignty" that the people always hold the right to scrutinize their Constitution and enact a new one. However, based on the beliefs that the constitutional text should be both permanent and flexible, and that the procedures for constitutional revision should be simple and clear, the final GHQ draft was changed to require two-thirds of the votes in a unicameral house for the proposal of a revision, followed by ratification by a referendum and promulgation by the Emperor.

>> After the GHQ draft was submitted to the Japanese side, the legislative structure was changed to a bicameral legislature in accordance with Japanese requests, and the consequent requirement for concurring votes by both houses to initiate a revision effectively imposed stricter conditions for adopting constitutional revisions.

(2) The Original Intent of Article 96

According to statements made by Minister of State KANAMORI Tokujiro at the 90th session of the Imperial Diet, a conceptual distinction was made between the right to establish the constitution and legislative powers, with the former exercised by a direct expression of the people's will and the latter expressed via the Diet, and that this is why Article 96 stipulates that the Diet has the right to initiate constitutional amendments while the people must ratify (adopt) such amendments.

 3. Conclusions

 >> The hurdles for amending the constitution imposed by Article 96 are definitely high, but they are by no means the highest from a worldwide perspective. Additionally, a mere look at formalities constraining constitutional revision in foreign countries should not lead to a conclusion about how frequently their constitutions can be revised.
 

Main points of Prof. NAGAO's statement

 1. Problems with Rigid Constitutions

 >> The French Gironde Constitution states that the people always have the right to review and revise their constitution, and that when a given generation adopts a constitution, they do not have the right to force future generations to obey it (theory of generational sovereignty).

 >> A rigid constitution constitutes the egotism of its legislators, and their descendents have the right to oppose it.

>> The various reasons why constitutions are considered as paramount to regular laws may be summarized as follows:

  1. "Law of God" - Religious bases, such as in Judaism and Islam.
  2. "Worship of founders" - The Tokugawa Shogunate deified TOKUGAWA Ieyasu as the "Great Incarnation Who Illuminates the East."
  3. "Traditionalism" - Traditions have a prestige that cannot by changed by majority votes of descendents' generations.

    However, it is important to note that there are "old traditions" and "new traditions," and that constitutions themselves have been created in the destruction of "old traditions."

  4. "Resolve amid dramatic change" - Carl Schmidt argues that decisions made during times of emergency take precedence to those reached during normal times. Based on this, decisions reached during times of "dramatic change," such as defeat in war, should be given precedence. However, Schmidt's thesis cannot necessarily be applied to all situations.

>> The fixed nature of the Constitution supports "a stable order" in that a special majority must approve any revisions. However, we must ask if it is it right for the majority (the descendents of those who drafted the Constitution) to be bound by a minority opinion (that held by a limited number of individuals who agree with the opinions that were held by the founders when they drafted the Constitution).

 2. The Significance of Rigid Constitutions

 >> Nevertheless, we need to consider the following aspects in discussing whether it is acceptable for constitutions to be revised by simple majority votes.

 >> From the perspective of the concept of "natural rights," there must be some items that cannot be changed, even with a majority opinion.

 >> Additionally, a "self-critical society" (a society that always respects minority opinions) is one that is not self-destructive, and maintaining opportunities for discussions between majorities and minorities builds up social stability. It is also important to note that there are two kinds of "minorities" - "temporary minorities" and "permanent minorities."

 >> In this respect, the fixed nature of the Constitution is significant because it protects minorities.

3. Conclusions

 >> Modern constitutions are ultimately derived from the philosophy of the Enlightenment. John Locke argued that humans are a "tabula rasa" at birth, and are completely formed by their subsequent experiences, but they have the right to return to a "tabula rasa" when they become adults. The Gironde Constitution that I mentioned at the outset essentially embodied this ideal into a statutory form.

 >> I do not believe that the "tabula rasa" principle is correct as a philosophy of history. If history is the repetition of returning to a "tabula rasa," however, this would mean that Enlightenment thought and tradition are always at odds.

 >> I think it will be necessary to achieve harmony between Enlightenment thought and tradition in the 21st century.

Main points of questions and comments to Prof. TAKAMI and Prof. NAGAO

KONDO Motohiko (Liberal Democratic Party)

 (To both informants)

>> While Article 96 stipulates the procedures for revising the Constitution which include a national referendum, no laws have been enacted covering such referendums, so it is at present impossible to actually revise the Constitution. This may be considered as a failure or error of omission by the Diet. Regardless of the question of whether or not the Constitution should be revised, I think we need to promptly enact a law that would make revisions possible. What is your opinion?

 (To Prof. TAKAMI)

>> Are the procedures for constitutional revisions in other nations all included in their constitutions themselves, or are some of these left up to subordinate laws?

 (To Prof. NAGAO)

>> Democracy respects minority opinions, but we cannot respond to the demands of the times for constitutional revision by giving excessive respect to minority opinions and ignoring majority opinions. In this respect, and having read some of your works, I have gained the impression that a flexible constitution might be preferable. What is your opinion?
 

BANNO Yutaka (Democratic Party of Japan and Club of Independents)

 (To both informants)

>> Before launching debate on proposals to revise the Constitution in the Diet, I think we must first rectify the discrepancies in the weights given to individual votes [from different constituencies] in the election of Diet Members. If not, then the debate will not accurately reflect the will of the people. What is your opinion about this?

 (To Prof. NAGAO)

>> I think it would be acceptable to slightly relax the present requirements for initiating constitutional revisions. Do you have any good wisdom regarding the "protection of minorities" that you referred to?
 

ENDO Kazuyoshi (New Komeito)

 (To both informants)

>> The Preamble to the Constitution states "This is a universal principle of mankind upon which this Constitution is founded. We reject and revoke all constitutions ... in conflict herewith." Similarly, Article 9 reads "... the Japanese people forever renounce [war as a sovereign right of the nation] ...," and Article 11 refers to "... eternal and inviolate rights." Considering these passages, I think the Constitution clearly stipulates some limitations on constitutional revisions. Do you agree?

 >> I think a revision of Article 96 itself would be a type of self-contradiction. Do you think it is possible to revise the constitutional provisions for revising the Constitution?
 

FUJISHIMA Masayuki (Liberal Party)

 (To both informants)

>> Are there any limits on the stipulations that can be incorporated into a constitution, and are all constitutional stipulations necessarily valid? For example, I think that natural law provides a legal basis for the existence of the Self-Defense Forces, and that stipulations prohibiting the exercise of the right of self-defense cannot be incorporated into a constitution, or would be invalid if they were. What is your opinion?

 >> What is your opinion about the relationship between the pacifism expressed in the Constitution and the maintenance of military forces?
 

YAMAGUCHI Tomio (Japanese Communist Party)

 (To Prof. TAKAMI)

>> You stated that the procedures for revising constitutions in various countries can be grouped into several categories, and that they are normally based on frameworks satisfying two imperatives (maintaining constitutional stability and the principle of popular sovereignty). Considering the history of how constitutionalism grew and spread around the world, can we view the constitutions of all nations as sharing common roots?

 >> Is it correct to say that the concept of inter-generational constraints (the idea that legislators can place restrictions on future generations) corresponds, in some aspects, to the stipulations governing constitutional revisions?

 >> I also support the theory that there are some limitations to constitutional revisions. What sort of specific items do you perceive as limited?

 >> Have you conducted any research or other work concerning the theory of limitations to constitutional revisions?

 (To Prof. NAGAO)

>> You have presented a critical view of rigid constitutions, and also explained that it is difficult to apply generally the theory of "resolve amid dramatic change" in all cases. Is it correct to interpret these statements as your considered opinion based on your legal and philosophical research?

 >> During the period from the Meiji Era until the beginning of World War II, theocratic constitutional theories, including the Kakei theory, that would never be accepted today were widely supported. Why do you think this occurred?
 

KITAGAWA Renko (Social Democratic Party)

 (To both informants)

>> I think it is important to verify whether constitutional ideals are reflected in the laws. Considering this, are there any specific points in laws that attract your concern?

 >> Some believe that the "new human rights" should be explicitly incorporated into the Constitution via new provisions, but I do not agree. What is your opinion about this?

 

INOUE Kiichi (New Conservative Party)

 (To both informants)

>> I think the Constitution's ideals and the realities were in accordance at the time that the Constitution was enacted, but that these have since gradually diverged. When such divergences can no longer be covered via constitutional interpretations, what types of measures should be taken to resolve this?

 >> I understand that the provisions for revising the constitutions of various countries can be classified into several categories. In this regard, which countries' constitutions do you think are functioning well?

 >> Do any countries stipulate different constitutional revision procedures for different items?
 

HIRAI Takuya (Liberal Democratic Party)

 (To both informants)

>> A public opinion poll implemented by a certain newspaper company has indicated that the majority of the people have been in favor of revising the Constitution for several years. Despite this, under the provisions of Article 96, the Constitution cannot be revised, even with the support of the majority of the people, as long as at least one-third of the Diet members are opposed. I think this gives precedence to the opinions of the people's representatives above the people's own opinions. What do you think about this?

 >> From the perspective of advancing the principle of popular sovereignty, I think we should consider provisions whereby constitutional revisions could be initiated directly by the people. What is your opinion about this?

 >> If the Diet Law had provisions stipulating that the Cabinet cannot initiate constitutional revisions, would these provisions be unconstitutional?

 >> When Charles de Gaulle was serving as the president of France in 1962, he ignored the provisions of the French constitution by revising the constitution via a direct national referendum. There were doubts about the constitutionality of this action, but the constitutional revisions were ruled to be valid by France's Constitutional Court. What do you think was the theoretical basis for this Constitutional Court ruling?
 

SHIMA Satoshi (Democratic Party of Japan and Club of Independents)

 (To both informants)

>> I released my proposals for the revision of Article 96 in the June 2002 issue of Voice. I proposed (a) making it possible to revise the Constitution without a national referendum as long as at least two-thirds of the members of both Houses of the Diet approve, and also (b) that any revisions of Chapter 3 (concerning fundamental human rights) should require a national referendum. What do you think about these proposals?

 >> In the referendum on constitutional revisions conducted in Italy last November, the voter turnout was low at just 34 percent. I think the wording of Article 96 does not stipulate any particular voter participation rate. Some think that constitutional revisions approved in national referendums with low voter participation rates should be invalid. What is your opinion?
 

MORIOKA Masahiro (Liberal Democratic Party)

 (To both informants)

>> The Constitution was enacted amid abnormal conditions under the Occupation following Japan's defeat in World War II, and with the involvement of the GHQ, which transcended national sovereignty. I think Article 96 was based on the American intention of eliminating Japan as a threat, and that the Constitution was enacted despite opposition from the Japanese government of that time. Considering this historical background, (a) what are your thoughts about the process whereby the Constitution was enacted, and (b) do you think that the hurdle posed by Article 96 should be changed?
 

Main points of comments by members of the Subcommittee (in order of presentation)

FUJISHIMA Masayuki (Liberal Party)

 >> No referendum law has been enacted for the actual implementation of the Article 96 constitutional revision procedures. Regardless of whether this should be considered as an error of omission on the part of the Diet, I think such a law should be promptly enacted.

 >> I think this Subcommittee should initiate some sort of action toward the enactment of a referendum law, and I would like the Subcommittee report to mention, at the very least, that a discussion took place here stating that the Diet should work towards the enactment of a referendum law.
 

HIRAI Takuya (Liberal Democratic Party)

 >> I agree with the opinion just expressed by Mr. FUJISHIMA. I think there is no rational basis for the opinion that we should take a cautious approach toward the enactment of a referendum law.
 

YAMAGUCHI Tomio (Japanese Communist Party)

 >> I think Prof. TAKAMI's opinion that the present lack of a referendum law for implementing the Article 96 constitutional revision procedures does not represent legislative nonfeasance is well thought out.

 >> I do think that a referendum law will have to be enacted when the revision of the Constitution becomes a concrete issue, but that the lack of such a law at the present time does not constitute insufficient preparation.
 

OHATA Akihiro (Democratic Party of Japan and Club of Independents)

>> The issue of the post-war reconstruction of Iraq brings to mind the situation in Japan after the defeat in World War II, when the present Constitution was enacted under the Occupation. It is impossible to believe that the will of the Japanese people was properly reflected at that time. Considering this historical background, I think it is likely that the Constitution will eventually be revised by the will of the people, and therefore I personally believe that we should implement all of the specific legislative measures that will be required to revise the Constitution, in advance, to prepare for such a future revision.
 

ENDO Kazuyoshi (New Komeito)

 >> The items concerning the revision procedures stipulated in Article 96 that require further discussions include: (a) does the Cabinet have the right to initiate revisions; (b) should the quorum for deliberating revisions be the same as that required for an ordinary committee; (c) does the two-thirds of "all the members" of each house required for initiating revisions refer to the number of members as stipulated by law or to the actual number of members; (d) does the "majority" for the referendum refer to a majority of all qualified voters, a majority of all votes cast, or a majority of all valid ballots?

 >> While not one word or phrase of the present Constitution has been changed since it was enacted, I think that in practical terms the Constitution has actually undergone many changes through so-called "interpretive revisions." Jellinek wrote that realities both destroy and create laws, and in fact the changing times do precede changes in the law. I think it is already becoming impossible to address the changing times through interpretive revisions alone, and that we now need to think about the Constitution from this perspective.
 

KITAGAWA Renko (Social Democratic Party)

 >> I think that the Constitution stipulates limits on the exercise of the power of the state.

 >> Prof. NAGAO has suggested that Japan may only revise its Constitution amid periods of dramatic change. I have doubts about whether in-depth discussions are being made, inside and outside of the Diet, as to whether the prerequisites have arisen requiring a revision of this Constitution that restricts the exercise of the power of the state. Before addressing the problems with Article 96, I think we first need to focus on the present conditions whereby the exercise of the power of the state is restricted.
 

SENGOKU Yoshito, Deputy Chairman

 >> Japan has fallen into gridlock under the present constitutional order. Accordingly, I think we should discuss the Constitution from the perspectives of determining if the present systems are functioning effectively in this era of advancing information technology and globalization, and of identifying which constitutional provisions should be revised to facilitate the progress of systems reform. In other words, our discussions need to consider the future form of the nation.

 >> I can understand the comment that the failure to prepare a law covering national referendums for constitutional revisions represents an error of omission by the Diet in terms of the procedural theory, but as a practical matter the formation of a citizens' consensus on specific constitutional reforms and improvements should come first. The procedural matter of enacting a referendum law for constitutional revisions can be addressed thereafter.

 >>I think that national and local referendums should be adopted by constitutional revision as a means of building up political consensus in Japan. The enactment of a law on national referendums for constitutional revisions should take place in conjunction with legislating for national referendums in general.
 

OKUNO Seisuke (Liberal Democratic Party)

 >> About 20 years ago, when I was serving as the Minister of Justice, I was asked my opinion regarding the autonomous enactment of a new constitution by a member of what was then known as the Socialist Party of Japan. I thought it was best to present my honest opinion to the people, and so I replied that it would be fine if discussions were held among the people and a momentum for constitutional revision were brought about, and [I did not mind] if this ended in the same Constitution. Factions that support the present Constitution tried to force me to resign for making this comment, and yet I doubted if their intention was really to defend the Constitution.

 >> There are divided opinions regarding whether the Self-Defense Forces are unconstitutional under the present Constitution, and we need to enact a Constitution that can truly be observed. To do so, we need to keep in mind what type of nation Japan should become in the future. I would like to hold discussions together with those who feel that revising the Constitution is unacceptable, to seek strategies to overcome the impasse.
 

ENDO Kazuyoshi (New Komeito)

 >> I have doubts about the approach of first just enacting a referendum law for revising the Constitution. As Deputy Chairman SENGOKU stated, I think it is important to first consider the future form of the nation. For Article 96 as well, we should enact a referendum law only after the points of dispute that I enumerated earlier today have been properly discussed.
 

KITAGAWA Renko (Social Democratic Party)

 >> I think a constitution is something entrusted by the people, or the citizenry, to politicians, judges and other civil servants for them to strictly observe. When considering the problems with Article 96, we should accordingly consider what lies behind its provisions. I have concerns about the Diet advancing its constitutional deliberations in times of "dramatic change" as phrased by Prof. NAGANO, or under other words, in an over-excited state.

>> I think we need to listen not to politicians and others who are close to the Constitution, but rather those who are far away, and to ensure that there is some sort of framework for incorporating their opinions.
 

FUJISHIMA Masayuki (Liberal Party)

 >> Some believe that it will be fully sufficient to enact a national referendum law after a specific proposal for revising the Constitution has been prepared, but considering the various issues with Article 96 such as those noted by Mr. ENDO, I think it will be important to at least address these types of issues beforehand.