Subcommittee on Ideal Constitution as Supreme Law (Second Meeting)

Thursday, March 4, 2004

Meeting Agenda

Matters concerning the role of the Constitution as the supreme law (systems of direct democracy)

After a statement was heard from Professor IGUCHI Shusaku concerning the above matters, questions were put to him. This was followed by free discussion among the members.

Informant

  • IGUCHI Shusaku, Associate Professor, Faculty of Human Environment, Osaka Sangyo University

Members who put questions to Prof. IGUCHI

Main points of Prof. IGUCHI's statement

1. Introduction

>> The concept of direct democracy includes both a pure type of direct democracy and "semi-direct" democracy. These are two different things, and they need to be discussed separately.

2. Referendum systems today

>> Lately, referendums have enjoyed an international popularity that is sometimes described as a "boom." When viewed as a whole, however, this is not necessarily a global trend; it is more of a European phenomenon, and there are a number of major nations, including the United States and Germany, that have not held referendums at the national level. Thus, it would not be true to say that Japan and its Constitution are behind the rest of the world.

>> There has been an increase in "bottom-up referendums," which are held by popular demand. "Top-down referendums," which are initiated by governments, have been decreasing.

3. The different types of referendum

>> Referendums can be classified according to: (a) who and what they cover; (b) whether they are legally binding; (c) the procedure for initiating them; (d) their relationship with initiatives.

>> Even if limits are placed on what matters can be covered in a referendum, these limits may not always be observed, as seen in the case of France.

>> It is difficult to see an inherent difference between the binding type and the advisory type in terms of legal force, as the example cited from Sweden shows.

4. Application to Japan

[1] In terms of constitutional principles

>> Although no one today argues that sovereignty resides with the abstract entity known in French as the nation (an argument that rejects direct democracy), this does not mean that the doctrine of the sovereignty of the peuple, which is strongly associated with direct democracy, has gained complete acceptance.

>> Direct democracy is no longer rejected by arguing from constitutional principles in any democratic system. Referendums are held under Britain's parliamentary sovereignty, while the U.S. Supreme Court has recognized the constitutionality of local referendums under the republican form of government (representative system).

>> Article 96 of the Japanese Constitution introduces the use of a referendum to ratify constitutional amendments. This does not contradict the representative democracy proclaimed by the Preamble. However, a system of binding referendums would conflict with Articles 41 and 59, and thus cannot be introduced unless the Constitution is amended first.

[2] The difficulties involved in direct democracy

>> The difficulties involved in direct democracy have been overcome to a considerable extent.

>> Various problems with direct democracy have been pointed out, but, in other countries, nobody is arguing that it should therefore be abandoned.

[3] Does direct democracy increase citizens' participation in public affairs?

>> Increased citizen participation is not, in itself, a goal of direct democracy.

>> Also, voter turnout in referendums is lower than that of elections.

[4] How direct democracy relates to constitutionalism, political parties, and deliberative democracy

>> With regard to how direct democracy relates to constitutionalism, given the Japanese Supreme Court's past record of judicial passivism, I expect that it would likely avoid ruling on the constitutionality of laws enacted through referendums by citing the theory of acts of state. In that case, there could be a risk that minorities would not be protected from laws of dubious constitutionality.

>> As for how direct democracy relates to political parties, there is a risk that holding referendums might, depending on their outcomes, make it less meaningful to choose a government based on the parties' policy manifestoes.

>> As for the relationship between direct democracy and deliberative democracy, referendums encourage public debate.

[5] Possibilities under the existing Constitution

>> Under the existing Constitution, it would be possible: (a) to make better use of local referendums; (b) to introduce advisory national referendums; (c) to give the public the right to introduce bills under certain conditions.

5. Conclusion

>> Direct democracy is a means of concretely realizing popular sovereignty and strengthening democracy, but it is only one means of doing this, albeit an important one.

>> There is no reason to avoid discussing the introduction of direct democracy, but we should not count on it to solve all our problems.

>> Some people may be discussing the introduction of direct democracy as a way to prime the pump for constitutional revision, but this is out of the question.

>> It is necessary to create a judiciary, a Diet, and political parties that are equal to the demands of direct democracy. To do this will mean realizing the ideals of the Constitution of Japan.

Main points of questions and comments to Prof. IGUCHI

FUNADA Hajime (Liberal Democratic Party)

>> You stated that it would not be impossible to introduce direct democracy even under the existing Constitution, but I think it would be difficult to introduce a binding referendum system, if not the other forms, as this would infringe Articles 41 and 59. In my view, it would be necessary to revise the Constitution in order to introduce such a system. Would you like to comment?

>> A constitutional amendment requires the approval of a majority of the people; why is this not a two-thirds majority? How do you view the relationship of direct democracy with requirements for a simple majority or a special majority?

>> In recent years, the provisions of Article 95 for local referendums on special laws applicable only to one local public entity have barely functioned. Given that the principle of local autonomy is self-government by residents, how should this system be utilized more fully? Also, under what circumstances should Article 95 be applied?


OIDE Akira (Democratic Party of Japan and Club of Independents)

>> To qualify as "semi-direct democracy," is it enough if a system of representative democracy includes even one system of a direct democracy type?

>> What is the difference between a plebiscite and a referendum?

>> Please explain the relationship between judicial review of the constitutionality of laws and the two forms of sovereignty (sovereignty of the peuple and of the nation) in the debate on referendums.

>> The fact that members of the U.S. House of Representatives are elected for a two-year term suggests that popular sovereignty in the United States is of the peuple type. If so, shouldn't this have favored the conclusion that U.S. laws are not subject to judicial review?

>> Would it be permissible under the Constitution to give the people the right to propose constitutional amendments? If this were to happen, would it be necessary to enact a "national referendum law"?


AKAMATSU Masao (New Komeito)

>> Were the low turnouts in the referendums in France related to the issues that were being voted on?

>> Could you explain in detail how a referendum system relates to elections in which parties campaign on the basis of policy manifestoes?

>> Do you think that the public's attitude to popular review of the appointment of Supreme Court justices will change after the "lay judge system" is introduced as part of judicial reform?

>> I think that the right of petition guaranteed in Article 16 should be regarded positively as a way of reflecting the will of the people outside elections. What do you think of the idea of introducing a system whereby petitions could be presented in the form of bills, provided that they are supported by the signatures of at least one-fiftieth of the electorate in ten or more prefectures?


YAMAGUCHI Tomio (Japanese Communist Party)

>> The Constitution is based on representative democracy but, at the same time, incorporates a system of direct democracy. Underlying this, I think, is the belief that direct democracy gives substance to popular sovereignty. What are your thoughts on this?

>> You noted that "some people may be discussing the introduction of direct democracy as a way to prime the pump for constitutional revision, but this is out of the question." I think the point that you were making was that what we currently need to do is to realize the ideals of the Constitution. Could you give us some examples of what you mean by "realizing the ideals" of the Constitution?

>> What are the characteristics of the Constitution of Japan when it is viewed in terms of comparative constitutional law?

>> Article 1 provides for the status of the Emperor under popular sovereignty. How do you evaluate this point?

>> Do you have in mind certain specific points that must be addressed in enacting a general Local Referendum Law?

>> You stated that, even under the existing Constitution, it would be possible to establish a system whereby the public could initiate bills provided that certain conditions were fulfilled. On which article of the Constitution do you base this view?

>> Issues that have been submitted to local referendums include nuclear power, environmental problems, and U.S. military bases. What do you think this means in terms of giving substance to resident self-government and the sovereignty of the people?


DOI Takako (Social Democratic Party)

>> Can parliamentary democracies be said to show a trend toward increasing popular or civic participation in the various institutions of democracy?

>> I think the word "law-making" in Article 41 should be construed as including the drafting stage. Presently, however, the vast majority of bills submitted and bills passed are Cabinet bills, and, moreover, conditions have been set for the initiation of bills. I view this situation as very problematic in light of the meaning of "the sole law-making organ" in Article 41. Would you like to comment?

>> Under the existing Constitution, what form of national referendum system do you think would be suited to Japan?


SHIMOMURA Hakubun (Liberal Democratic Party)

>> Assuming that Japan has its own unique atmosphere and mentality, is there any aspect of direct democracy that might be handled differently here as compared with other countries?

>> Would you please explain in detail your suggestion that there is a need to explore and put in place conditions to ensure that direct democracy functions according to the ideal?

>> Would you please give us a detailed image of your proposals in the area of the right of minorities to introduce bills"? Also, in concrete terms, what kind of matters would such a right be suited to?


KOBAYASHI Kenji (Democratic Party of Japan and Club of Independents)

>> It seems to me that, while it is difficult for Diet members to act against the wishes of the groups that support them, in some respects the present situation is undeniably semi-representative, in that they are also required to reflect the wishes of the electorate. I would like to hear your views on this point.

>> Japan accepted the principle of popular sovereignty without going through a popular revolution. If it is to become a nation of true popular sovereignty, I think there is a need for a broad "constitution-making movement" that would take the place of a popular revolution. In this process, I think that the question of how to recognize direct democracy, in such forms as national and local referendums, in addition to the indirect democracy that we have at present, will be an extremely important perspective. Would you like to comment?

>> Please tell us the one thing, if any, that you consider essential if the public is to gain a deeper understanding of the Constitution in a changing world.


MORIOKA Masahiro (Liberal Democratic Party)

>> Reading the section on the United States in the report of the FY 2003 Survey Mission by the House Delegation, I learned that California faces what could be called a crisis of the parliamentary system because direct democracy has been taken too far. What are your views of this situation?

>> I believe that the essence of democracy lies in the debate process. At present, however, municipal mergers tend to be put to a direct vote of residents despite a lack of thorough debate. I would like to hear your views on this antidemocratic trend.

>> Some people contend, based on the principle of popular sovereignty, that the Constitution cannot be revised to abolish the requirement for a national referendum in the procedure for constitutional amendments. I would like to hear your views on this.

>> Do you have any specific proposals for measures that might be submitted to a national referendum?

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

FUNADA Hajime (Liberal Democratic Party)

>> I have listened with great interest today to a discussion that could be called a struggle between representative and direct democracy. I think it is true to say that the existing Constitution is situated between these two, and I believe that we should consider representative democracy as its core and regard the portions relating to direct democracy as being limited.

>> It has been argued that national referendums in general can be introduced by interpretation, not revision, of the existing Constitution, but I do not think that this is correct, considering the intent of Article 41, among other provisions. In my view, if we wish to introduce referendums in general, it will indeed be necessary to make explicit provision in the Constitution.

>> Parliamentary democracy is an excellent system for governing a modern state, but there naturally will be increased public pressure for a referendum when there is political strife or when parliamentary debate does not reflect public opinion. As I see it, there is a trade-off relationship between parliamentary and direct democracy.

>> In the future, I think that a division of roles will be necessary; for example, referendums could be held on issues in certain fields. Which fields to choose will be left to the judgment of politicians in years to come, along with related questions.

>> As regards the limitations of referendums, such as low turnout and manipulation of public opinion, we must overcome these with good judgment.


YAMAGUCHI Tomio (Japanese Communist Party)

>> The Constitution is based on representative democracy but, at the same time, incorporates a system of direct democracy, and I think that there is not so much a struggle going on between the two, but a design that allows both to function in order to give substance to popular sovereignty.

>> The list of possibilities under the existing Constitution included improving local referendums and studying the issues involved in national referendums of the advisory type, but we need to give careful consideration to what is required in relation to the Constitution.

>> Prof. IGUCHI spoke of "realizing the ideals of the Constitution." There have already been calls for this Commission to address "realizing the ideals of the Constitution," and now that this point has been raised in the area of direct democracy also, I think it is essential that we investigate and study this question.


NAKAYAMA Taro (Chairman)

>> It is a pity that, in today's debate, we were unable to touch on the details of the referendum system stipulated in Article 96 for ratifying proposed constitutional amendments. It does not befit a nation under the rule of law to remain undecided on the procedures for implementing the constitutional amendments while having a stipulation in the Constitution for its amendments in place. In my view, this is tantamount to legislative nonfeasance.

>> In enacting a law on referendums for constitutional amendments, we should consider allowing even persons whose civil rights have been suspended to vote in them, as this is an important vote which determines the nation's future.


YAMAGUCHI Tomio (Japanese Communist Party)

(To Mr. NAKAYAMA)

>> A claim of "legislative nonfeasance" is normally premised on there having been some "harm" as defined by the Law Concerning State Liability for Compensation. I do not agree that failing to enact a law on referendums for constitutional amendments can be called legislative nonfeasance, as it cannot be said to violate the constituent power.

>> This Commission is charged with conducting broad and comprehensive research on the Constitution. In my view, there is no call at present for this Commission to formulate a law relating to Article 96.

> NAKAYAMA Taro (Chairman)

>> The purpose of this Commission is to conduct research on all of the Constitution's provisions. As I see it, carrying on a thorough discussion is certainly not detrimental to that purpose.

> OIDE Akira (Democratic Party of Japan and Club of Independents)

>> The subject of national referendums came up in 1957, when Mr. NAKASONE, who later became Prime Minister, advocated a system of popular election of the premier, but, at that time, it met with strong opposition. Behind the current demand for referendums, I see an ongoing shift from the nation type to the peuple type of sovereignty, together with problems in the way that the popular will is reflected at present.

>> Popular sovereignty requires that the will of the people be reflected, but the ability of the current electoral system to do that is problematic because of the single-seat constituency system, the accompanying disparity in the weight of a single vote, and the ban on house-to-house canvassing, among other issues. It seems to me that the argument in favor of reflecting public debate by means of referendums has emerged as a result.

>> If we emphasize reflecting the will of the people, I think we will lean toward the introduction of national referendums.


FUNADA Hajime (Liberal Democratic Party)

(To Mr. OIDE)

>> I have also been a proponent of popular election of the premier, but when Mr. NAKASONE advocated such a system at the previous Commission on the Constitution that was set up in the Cabinet in 1957, it was trumpeted in the mass media as a form of plebiscite, and I think it was difficult to discuss it in that context. However, it would be meaningful to think again about a system of popular election of the prime minister, as the national structure has now shifted to something approaching peuple-type sovereignty.

>> Single-seat constituencies result in a distillation, not a reflection, of the popular will, and with this system we have come close to enabling voters to choose a particular administration. Unlike Mr. OIDE, I see this as valuable.

>OIDE Akira (Democratic Party of Japan and Club of Independents)

>> I do not deny the value of the single-seat constituency system, but it seems to me that democracy in the true sense consists of a reflection, not a distillation, of the will of the people.


MASHIKO Teruhiko (Democratic Party of Japan and Club of Independents)

>> I believe that, while maintaining a system based on representative democracy, we should conduct referendums on major issues of national significance.

>> I am concerned about the low turnout in national elections.

>> From the viewpoint of either reflecting or distilling the will of the people, whether by representative or direct democracy, there is a need to set a minimum turnout rate below which the vote will not be valid. This is an issue that I think should be discussed further in this Subcommittee.


YAMAGUCHI Tomio (Japanese Communist Party)

(In connection with Mr. NAKAYAMA's comment)

>> I think the reason why the contents of Article 96 were not taken up in detail during the questions and comments to Prof. IGUCHI is that, in his statement, he took the position that what is presently called for is not constitutional revision but "realizing the ideals of the Constitution."