First Open Hearing

Wednesday, May 12, 2004

An open hearing was held on matters concerning the Constitution of Japan. After statements were heard from persons who volunteered to speak at the hearing (hereafter, "speakers"), questions were put to them.

Morning:

Speakers

  • INOGUCHI Kuniko, Professor, Faculty of Law, Sophia University
  • KAWAMOTO Yuko, Professor, Graduate School, Waseda University
  • INOKAWA Kinzo, former Secretary General, Gunma Forestry Improvement and Extension Association

Members who put questions


Afternoon:

Speakers

  • OGUMA Eiji, Assistant Professor, Faculty of Policy Management, Keio University
  • FUNABIKI Takeo, Professor, Graduate School, University of Tokyo; cultural anthropologist
  • YAMAZAKI Masakazu, President, Toa University

Members who put questions


Main points of statements by speakers (morning)

INOGUCHI Kuniko

>> In its multilateral diplomacy in the field of international security, Japan is recognized as a dependable major power, and it is well regarded as a nation that displays a high capacity to resolve problems of many kinds.

>> Our starting point in examining the Constitution should be a positive evaluation of the efforts of the postwar Japanese state and society and a deep awareness of the valuable presence in the world earned by those efforts. If we take this as our point of departure, we will be able to maintain continuity by making the minimum necessary changes, concisely and without losing sight of our priorities and drifting toward excessive course corrections, and thus, rather than disrupting the status and regard that Japan has built in the international community, we will be able to develop them further.

>> The process of researching and examining the Constitution is a meaningful political process that further strengthens the people's deep sense of ownership of the Constitution, together with the affection they feel for it. If one considers the historical weight of the fifty-plus years over which the people have been faithful to the Constitution, it is not appropriate to argue that we should revise it solely on the grounds that it was written under the Occupation.

>> The ideas proclaimed in Article 9, Paragraphs 1 and 2 are widely known in the international community, and they have gained a special regard. The world understands that there are constraints on Japan's international contributions in the military sector and appreciates how much Japan has done to devise ways of making international contributions within these limits. Japan should not undervalue its own place in the world; indeed, we should actively communicate our message, trusting in its ability to inspire the international community, and we should place a higher value, in our diplomacy, on the willingness to accept diversity that other nations have shown by affirming Japan's stance.

>> Contributions to postwar reconstruction are important in terms of prevention and restoration. We should provide our international assistance with pride and, at the same time, bring our diplomatic skills to bear on achieving a peaceful settlement among the various forces.

>> We should firmly counter the criticism that it is a cowardly avoidance of military risk and the like to opt for disarmament, nonproliferation, and humanitarian assistance as the special characteristics of Japan's international contributions. Like the other contingents, the Self-Defense Forces are potentially risking their lives in the line of duty, and we must win the world's recognition that the cooperation they are providing is valuable.

>> If public opinion ever turns in favor of revising the Constitution, while maintaining the basis of Article 9 it would be worth studying the possibility of adding a concise reference to an armed organization for self-defense purposes. But we should be cautious about incorporating into the Constitution matters more properly handled in separate laws and making complex revisions based on predictions of the future international situation or UN operations.


KAWAMOTO Yuko

>> Because of a "dual standard," restrictions on economic freedoms are accepted under looser standards than those for spiritual freedoms; the former are judged against the principle of rationality, and so far they have been applied without serious mistakes. While it is worth considering a reworking of the Constitution in the sense that this would provide a double check on the way it is being applied, the Constitution should not regulate economic policy in detail.

>> I am opposed to mandating a balanced budget in the Constitution. Rather than stipulating that there will never be a budget deficit, we should stipulate that a budget deficit will never be concealed.

>> In addition to guaranteeing economic freedoms, we should review the Constitution with a view to guaranteeing that government actions do not cause distortions or pose an excessive burden economically, and also to creating a mechanism for that purpose which would enable the public to monitor and correct government actions.

>> First, having recognized that inadequate public disclosure of information is responsible for the ballooning and increasingly serious problems that exist in such areas as the Fiscal Investment and Loan Program or special public corporations, we should make clear provision in the Constitution for the government's duty of timely and active disclosure of information about any actions it takes that could ultimately place a burden on the public.

>> Next, we should take steps to review the imbalance of Diet seats. In my view, the existence of a major discrepancy in the weight of a single vote means that the Diet does not meet the necessary conditions to be the organ responsible for public policy-making, and the Supreme Court's decisions on the constitutionality of the present situation are also of very doubtful validity. The Diet should take swift corrective action, and if the Constitution leaves room for an interpretation that recognizes the existing discrepancy, we should review the relevant provisions. Further, when the Court rules that an existing allocation of seats is unconstitutional, it should require the Diet to pass legislative measures to correct the situation within a given time limit, and the elections in question should be held again.


INOKAWA Kinzo

>> With regard to reviewing the bicameral system, instead of jumping to the conclusion that we should have a single chamber, we need to start by considering what should be done to enable the Diet to function efficiently. In particular, the issue becomes what form the House of Councillors should take.

>> First, if the Diet is to operate rationally, we should divide the powers of the two chambers so that deliberations on the budget are the sole prerogative of the House of Representatives and the audit is the sole prerogative of the House of Councillors. The audit is a check on the political responsibility of the Cabinet, and it has an important significance distinct from that of the Board of Audit's inspections.

>> Next, we should shift certain powers relating to the judiciary to the Upper House by (a) making nomination by the Upper House the basis for the Emperor's appointment of the Chief Justice of the Supreme Court, which is at present based on nomination by the Cabinet; and (b) making the advice and approval of the Upper House the basis for the Emperor's attestation of general and special amnesty and related dispensations which are at present based on the advice and approval of the Cabinet.

>> Many developed nations have bicameral systems. Examples of second chambers in other countries include France's Senate and Germany's federal-style chamber, each of which has its own raison d'être. Japan's House of Councillors, however, appears to lack a clear raison d'être such as adding a further layer of deliberation or a restraining function. As I see it, unless we can rework the system along lines that give the Upper House an identity of its own, we will have no choice but to adopt a unicameral system.

>> In light of changes in the scale and structure of the economy and other factors, the prefectural system with its small units is no longer suited to the times. In the event that we shift to a do-shu system, another possibility for the Upper House is that it could be replaced by a new second chamber composed of representatives of each of the do-shu.

>> Although both Houses are reluctant to review the bicameral system, such a review is important to the nation as it will have a direct effect on governance, and I very much hope that it will be carried out.

Main points of questions to speakers (morning)

YASUOKA Okiharu (Liberal Democratic Party)

(To Prof. INOGUCHI)

>> The "human security" approach is basic to Japan's foreign policy and a fundamental principle of its ODA. This importance can be justified in terms of the Preamble's reference to "the right to live in peace," but, as I see it, the Preamble refers to a "negative" right to live in peace, that is, never again going to war, rather than a positive right. In reviewing the Constitution, what status do you think we should give to human security and the positive right to live in peace?

>> One can imagine situations in which the use of force would be necessary in preventing a conflict or restoring order after a conflict. The work of the Self-Defense Forces in Iraq is highly regarded, but there are constitutional restraints on their use of force and related activities undertaken in order to participate in joint duties or rescue Japanese nationals. I believe we should review the Constitution from the viewpoint of risk management. Would you like to comment?

(To Prof. KAWAMOTO)

>> I think we should make express provision in the Constitution for freedom of commercial or economic activity. What are your views on this point?

>> The draft Constitution recently proposed by the newspaper Yomiuri Shimbun seeks to realize a free, vital, and fair society by enhancing the welfare of the people. How do you conceive the relationship between "the welfare of the people" and "realizing a free, vital, and fair society"?

>> Your position seems to be that we should not regulate public finances unduly by means of explicit constitutional provisions, but what do you think of stating explicitly in the Constitution that efforts should be made to maintain and operate sound public finances?

>> I believe we should make express provision in the Constitution for the right to know. What are your views about establishing a system for freedom of information concerning public finances?

>> It is important to protect and manage intellectual property rights in order to boost Japan's international competitiveness, and I believe these rights should be constitutionally guaranteed. What are your views on this point?

(To Mr. INOKAWA)

>> There is a wide spectrum of opinion regarding the bicameral system, including the view that it needs to be reviewed as it is inefficient in times such as these, which demand speed. As one possible alternative, the House of Councillors could be composed of administrative and legal experts, senior or retired Diet Members selected by recommendation or other methods. If you have any further views on the bicameral system, in addition to those you discussed in your statement, I would like to hear them.


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

(To Mr. INOKAWA)

>> In connection with reviewing the bicameral system, you stated that the Chief Justice of the Supreme Court should be appointed by the Emperor based on nomination by the House of Councillors instead of the Cabinet. Could you explain this idea in more detail?

>> Am I correct in thinking that when we postulate a decentralized state of the federal type, we arrive at a bicameral system in which one chamber represents the units of the federation?

>> I would like to hear your views on both a federal system and a do-shu system.

(To Prof. INOGUCHI)

>> What are the characteristics of Japan's efforts on behalf of disarmament? Also, what is Japan's involvement with regard to the [UN] Register of Conventional Arms?

>> What reconstruction assistance work do you think will benefit Iraq?

>> I would like to hear your ideas on a future vision for the United Nations.

>> I have a sense that the Security Council's resolutions relating to Iraq laid emphasis on actions being taken under the control of the United Nations. Can this be seen as an effort to bring America back to normal from its present unilateralism?


OTA Akihiro (New Komeito)

(To Prof. INOGUCHI)

>> Collective security under the United Nations is different from the use of force in a war of aggression. As I see it, the difference is a qualitative one, and it is not necessary to spell this out in the Constitution. I would like to hear your views on the constitutional status of collective security under the United Nations.

>> In my view, in addition to the importance of international contributions by military means, it is also important to make international contributions and build a system in the area of preventive policing operations. I would like to hear your views on making provision in the Constitution for international contributions in this area.

>> At present, Japan makes a distinction between war potential and the minimum necessary use of force. With regard to the constitutional status of the Self-Defense Forces, I would argue that they can be considered not to constitute war potential, in keeping with the spirit of the Constitution which seeks to restrain the use of force. What is your view on this point?

(To Prof. KAWAMOTO)

>> What are your thoughts about the fact that the existing Constitution contains little mention of economic activity? Also, you stated that we should make explicit constitutional provision for the government's duty to release information to the public. Wouldn't it be better to give this the status of a responsibility rather than a duty?


SHIOKAWA Tetsuya (Japanese Communist Party)

(To Prof. INOGUCHI)

>> You said that, in the international community, Article 9 has gained special regard around the world. I would like to hear your reasons for this view.

>> If you have ever heard from foreign governments how they evaluate Article 9, I would like to hear their comments.

>> While there have been few successful examples of multilateral disarmament treaties, multilateralism has succeeded in the EU and ASEAN. I would like to hear your views on multilateralism and the unilateralism of the United States.

(To Prof. KAWAMOTO)

>> Article 21 of the Constitution guarantees the right to know, and I think that thorough disclosure of information by the government should be ensured by expanding the Information Disclosure Law. What forms of information disclosure do you think are required?


TERUYA Kantoku (Social Democratic Party)

(To Prof. INOGUCHI)

>> The continued presence of U.S. bases in Okinawa, even after its return to Japan, means that situations that violate the Constitution occur on a daily basis. I would like to hear your views on the constitutional situation before and after the reversion of Okinawa.

>> You stated that we should firmly counter the criticism that it is a cowardly avoidance of risk to opt for disarmament, nonproliferation, and humanitarian assistance as the special characteristics of Japan's international contributions. The Social Democratic Party also takes the position that our international contributions should be made through humanitarian assistance. Do you think that Japan is adequately fulfilling its responsibility to make international contributions? Also, what specific international contributions do you think Japan should make?

>> The Social Democratic Party advocates "the right to live in peace" based on the Preamble and Articles 13 and 25, among other provisions. I would like to hear your views on this right.

Main points of statements by speakers (afternoon)

OGUMA Eiji

>> Although the Occupation forces took a strong initiative in its enactment, most of the conservative camp at the time welcomed the Constitution, largely because: (a) the United States presented disarmament and retention of the Emperor system in the form of a trade-off, (b) the conservatives looked at retention of the Emperor system and capitalism in the context of resisting the rise of the Communist Party; (c) they were also concerned for their own survival as they faced a crisis due to the purge of government officials.

>> It is true that the Occupation forces took the initiative, but since the Constitution was welcomed, we should not regard it as having been "imposed."

>> Spurred by the Cold War and the Korean War, the United States switched from its 1946 policy of disarming Japan to rearming it as an ally against communism.

>> The American demand for rearmament was welcomed by the former military and some members of conservative political circles, but it also provoked the reaction, not only from reformists but also from some conservatives, that we were becoming mercenaries for the Americans.

>> The Prime Minister at the time, YOSHIDA Shigeru, bargained with the United States to reduce the level of rearmament demanded, citing Article 9 and domestic public opposition, and established postwar Japan's course of concentrating on economic growth.

>> Revision of Article 9 could (a) cause an escalation of military demands on Japan by the U.S. government; (b) provoke a strong negative reaction among the American public and neighboring countries, which are wary of Japan becoming a military superpower; (c) unsettle the other Asian nations.

>> It is to be hoped that the nation will pursue a thoughtful constitutional debate, taking into account such factors as trends in the international community, and not an emotional debate about "enacting a constitution of our own."


FUNABIKI Takeo

>> In the debate on revising Article 9, some people argue that the Constitution should not be amended at all, but that is not consistent with the Constitution itself, as the existence of Article 96 clearly shows. Further, even if these opponents of revision are thinking only of Article 9, they are attempting to put a stop to debate on the Constitution as a whole, and their position amounts to an unacceptable verbal threat.

>> Article 9 can be described as a product of U.S. interests combined with the idealism of humankind. As a result, it has placed the nation in an abnormal position, that is, nonrecognition of the "right of belligerency," which is a right possessed ipso facto by all independent states.

>> Article 9 was designed to be meaningful as part of a package, the other part of which is the presence of U.S. forces to defend Japan. Thus, it is a fallacy to think that Japan's "Peace Constitution" is a deterrent to war.

>> With the end of the Cold War, the circumstances in which the defense of Japan by the United States was an unchallengeable premise no longer exist. At this point, the debate over Article 9 has taken on real substance.

>> In the global context, however, partly as a result of dramatic improvements in military technology, wars are becoming rare. Even the United States, whose situation leaves it no choice but to go to war, is seeing a gradual decline in the legitimacy, from the point of view of reasons of state, of the wars it fights.

>> I recognize both the Self-Defense Forces and the right of self-defense; indeed, I believe in the possibility of achieving international peace through the use of force in the form of a United Nations army. Nevertheless, revision of Article 9 is logically consistent only with the current situation, not with the outlook for the future.

>> The debate over Article 9 that we have persevered in carrying on, however difficult it may be, is a great asset. In the future, if a situation ever arises in which Japan must go to war, the present discussions should prove very valuable in deciding how to proceed.


YAMAZAKI Masakazu

>> In my view, ideological confrontations ("postwar democracy versus prewar patriotism," "a Constitution written by the Occupation forces versus a Constitution of our own," and so on) must not be superimposed on the constitutional revision debate.

>> Two urgent issues face us at present: (a) whether Japan should state explicitly that it possesses the right of self-defense; (b) whether we should declare that we are prepared to contribute to the maintenance of world peace. The debate should focus on these two points and should be conducted in practical and concrete terms.

>> To that end, we should avoid an across-the-board debate on revision of the whole Constitution. In the event that a national referendum were held, the public would be unable to answer if they had to decide the fate of Article 9, the bicameral system, the Cabinet system, and so on, all at the same time.

>> It is more important to revise legislation so as to facilitate constitutional amendments. In my view, we should open the way to the passage of individual constitutional amendment clauses, as is done in the United States.


Main points of questions to speakers (afternoon)

MORIYAMA Mayumi (Liberal Democratic Party)

(To all speakers)

>> When I was a Member of the House of Councillors, reforms of the electoral system in the House of Representatives resulted in similar electoral methods for both chambers, and questions arose about the meaning of having an Upper House at all. The proposed reforms included choosing members of the Upper House by having the political parties recommend representatives of different vocations, or persons with special expertise and experience. These proposals did not become a reality, however, because they infringed Article 43's stipulation that "Both Houses shall consist of elected members." I think we should probably adopt flexible provisions governing the form of the Diet and election of its members. I would like to hear your views in this regard.

>> When the question of how to deal with the rise in juvenile crime is discussed, the importance of education is always cited. In the debate on educational reforms, many people are calling for revision of the Fundamental Law of Education, and the question has been taken up and studied by the Ministry of Education, Culture, Sports, Science and Technology, and in talks among the ruling coalition parties. In this debate, it has been argued that we should make explicit provision for "fostering a spirit of patriotism." In my view, we should probably make explicit provision for this in the Preamble of the Constitution, not in the Fundamental Law of Education. I would like to hear your thoughts on this point.


TSUJI Megumu (Democratic Party of Japan and Club of Independents)

(To Prof. OGUMA)

>> Given that the Constitution of Japan came into being as a modern constitution descended from the French Revolution and other historical events, how should we regard it in an era in which regional communities that transcend the nation-state are emerging?

>> In debating the question of Article 9, I think that the formation of an East Asian regional community is a pointer in the right direction. Would you please comment on the issues to be addressed in the formation of such a community?

(To Prof. FUNABIKI)

>> You said that the security debate is relevant to Japan's future course. From that perspective, I would like to hear your views on what form Japan's foreign policy should take in the future.

>> You stated that while the United States' situation leaves it no choice but to go to war, the wars it fights are gradually losing their legitimacy; but I think that one reason why the United States' situation leaves it no choice is the fact that its economic structure depends on military industries. Doesn't the United States have the option of not going to war?

>> Japan's diplomatic strategy is to follow the United States' lead without reservation. Is there no way to break free of this situation?

(To Dr. YAMAZAKI)

>> I agree with your view that we should revise the Constitution on a specific, clause-by-clause basis and not across the board, but I would like to hear the specific revisions that you envisage.

>> You said that the debate on constitutional revision should not be turned into an ideological confrontation, but I think that at this point, before constitutional revision has been adequately debated, if we were to "revise legislation so as to facilitate constitutional amendments" as you propose, it might have the reverse effect of heightening ideological confrontation. Would you like to comment?


AKAMATSU Masao (New Komeito)

(To Dr. YAMAZAKI)

>> You have said in the past that the current state of international terrorism, rather than being attributable to economic causes or poverty, should be understood as a phenomenon of social pathology of a 20th century type. I would like to ask: (a) Do you still hold that view today? (b) If the current terrorism is a phenomenon of social pathology of a 20th century type, how long will it continue?

>> You have argued for establishing an international defense alliance against terrorism, and you suggest that the problem presented by Article 9 could thereby be overcome. If such an alliance were established, what role should Japan play?

(To Prof. OGUMA and Prof. FUNABIKI)

>> Are you in favor of retaining the existing provisions of the Preamble as they stand, like those of Article 9?


ISHII Ikuko (Japanese Communist Party)

(To Prof. OGUMA)

>> You stated that, in the early postwar period, the call for Japanese rearmament and revision of the Constitution was a matter of U.S. policy, but what are the concrete facts in this regard? Also, what is their background?

(To Prof. FUNABIKI)

>> You stated that, although wars still occur, the general trend of global developments is moving closer to Article 9. Am I correct in understanding this to mean that, although armed conflicts still occur in the real world, the renunciation of war, the renunciation of the maintenance of war potential, and the nonrecognition of the right of belligerency have not lost and will not lose their value?

(To Dr. YAMAZAKI)

>> You wrote in a magazine that you expect the current unipolar structure, in which the United States is the sole superpower, to continue for a long time. In reality, though, Europe and Asia are exploring the possibility of building peace and security from a position of multilateralism. What are your views on this point?

(To Prof. OGUMA)

>> You said that we need a thoughtful debate over Article 9, kept separate from emotional arguments about enacting a Constitution of our own. What did you mean by "emotional"?


DOI Takako (Social Democratic Party)

(To all speakers)

>> Public opinion polls conducted on Constitution Day, May 3rd, show that many people are in favor of revising the Constitution but opposed to revising Article 9. How do you think we should interpret these findings?

(To Dr. YAMAZAKI)

>> You stated that we should revise legislation so as to facilitate constitutional amendments, but did you mean that we should revise the article on constitutional amendments in the Constitution itself, or that we should revise the article on constitutional amendments by means of legislation?

>> Relaxing the requirements of the article on constitutional amendments by means of a constitutional amendment amounts to, as it were, a self-negation of the power to enact a constitution, and, in consequence, some people hold that there are limits to constitutional revision, in other words, that a revision of this kind is not permissible. I would like to hear your opinion in this regard.