Meeting Agenda
Matters relating to the Constitution of Japan
1. Parliamentary ombudsmen and other checks on the administration
Free discussion was held among the members on the above topic.
2. International organizations and the Constitution, with special reference to the UN Charter
Free discussion was held among the members on the above topic.
Parliamentary ombudsmen and other checks on the administration
The discussion began with comments by the Commission chairman, Mr. NAKAYAMA, on the topics under investigation.
Main points of initial round of comments by representatives of each party
SHIBAYAMA Masahiko (Liberal Democratic Party)
>> The proposal to establish an ombudsman system with a constitutional status should be approached with caution, but it is worth studying the creation of an ombudsman at the national level by legislative means.
>> In Sweden, the combined burden of taxation and social security contributions as a ratio of national income is 74.3 percent, in contrast to 35.5 percent in Japan. This points to one reason for the ombudsmen's importance in Sweden, in that there is a very strong public demand for oversight over how taxes are spent.
>> It is true that Japan at present lacks adequate ways for the Diet to keep a check on the executive branch. It is therefore important to complement the Diet's role with after-the-fact checks by the courts. Checks on the executive branch by the judiciary have been criticized in the past for an excessive tendency to judicial passivism, but the recent reforms of the administrative litigation system should improve the situation to a certain extent. Also, because litigation takes time and money, we should take active steps to establish alternative dispute resolution (ADR) in the administrative branch as a legal institution.
>> I am not in favor of establishing the status of an ombudsman with investigative powers in the Constitution, because of problems including (a) the difficulty of securing the level of quality associated with the office in Europe, (b) the difficulty of guaranteeing the ombudsman's independence and impartiality, and (c) the risk of diminishing the status of citizen ombudsmen.
TSUJI Megumu (Democratic Party of Japan and Club of Independents)
>> As we think about a vision for the nation in the 21st century, three keywords or key phrases are: nation-state, local autonomy, and control of the administration.
>> Nation-states spread around the world after the first popular revolutions, but on the scale of human history they should be seen as transitory. Thus, instead of proclaiming the principles of state sovereignty and nationalism, we should keep uppermost in our minds the kind of political choices that are conducive to creating a regional community with neighboring countries. Seen from this perspective, Prime Minister KOIZUMI's visits to Yasukuni Shrine are problematic.
>> With regard to the spirit of local autonomy referred to in Article 92, the Liberal Democratic Party seems to be moving toward a greater emphasis on self-government by local public entities rather than by residents, but if we are to achieve local autonomy in the truest sense, resident self-government should be strengthened. It is important to gain the community's consent to policies by, for instance, introducing a do-shu system.
>> In deciding the ideal structure of government, control over the executive branch is the most important issue, and this is a role that, properly speaking, belongs to the legislature. A large role is also expected of the judiciary, but at present we have a situation that could be described as judicial passivism, and the administrative litigation system is not fully functional either, despite the reforms. We need to address these issues, together with the possibility of creating a Constitutional Court.
>> An ombudsman system would be one effective way to strengthen the workings of the legislature. Because it serves not only to handle complaints but also to control the executive branch, an ombudsman system meets contemporary needs and, in the future, provision should preferably be made in the Constitution for the powers and other aspects of the office.
>> It is essential that an ombudsman be provided with sufficient investigative powers and also with the authority to do more than make recommendations. Further, among other measures, we should consider creating special ombudsmen to oversee particular institutions such as the police. There is much to be learned from the findings of the recent overseas survey mission in this regard.
AKAMATSU Masao (New Komeito)
>> The following comments are my personal views, not those of New Komeito.
>> With regard to whether an ombudsman system should be provided for in the Constitution, if we carry out a complete revision to create a constitution suited to the 21st century, we should make express provision for the office, but if we carry out a partial revision by adding to the existing Constitution, this point does not have a high priority.
>> In the case of a complete revision of the Constitution, we should provide for an ombudsman because (a) the oversight of the executive branch by the legislature under the separation of powers is not functioning properly; (b) ombudsmen have proved their worth in many other countries; and (c) it is only proper to establish such an office as a way to give popular sovereignty more substance and to ensure speedy redress when the rights of members of the public are violated.
>> In a partial revision of the Constitution, an ombudsman system does not have a high priority because it can be introduced by legislation, without making provision for it in the Constitution.
>> We should take steps to strengthen the existing system, e.g., by improving the handling of the petitions that are provided for in Article 16. I say this because (a) systems for handling complaints already exist; (b) the measures adopted in 1997 to strengthen the Diet's function of overseeing the administration are a Japanese answer comparable to the ombudsman systems in other countries; and (c) it is not clear that an ombudsman system would lend itself to Japanese conditions, nor that the strong powers, neutrality, and independence of such systems in other countries would work well in Japan.
>> If we were to introduce an ombudsman system by a future addition to the Constitution, it could be added to Article 16 while retaining the article's existing contents, but there is no great urgency for this.
YAMAGUCHI Tomio (Japanese Communist Party)
>> I would like to ask the Chairman of the Commission to exercise restraint with regard to making an opening statement on the topic.
>> Looking at the trends and characteristics of ombudsman systems around the world, in order to keep a check on "administrative states," whose administrations have grown to enormous size in the latter half of the 20th century, the system most often takes the form of a parliamentary ombudsman who oversees the executive branch while also handling complaints. Reflecting their different histories, some countries provide for the system in their constitutions and others do not.
>> In response to the many administrative scandals that occurred in Japan in the 1990s, each party put forward ideas on how to strengthen the Diet's oversight over the executive branch. The outline Ombudsman Bill published by the Japanese Communist Party in 1997 provided for an ombudsman with the dual functions of overseeing the executive branch and redressing complaints, in order to bring about an administration which places the citizen first.
>> With regard to whether the ombudsman's status should be established in the Constitution, the Constitution already provides a basis for powers of oversight over the administration, especially the right of a Diet member to investigate state affairs, and also for the right to petition, and there is therefore no need to revise the Constitution as a system can be created by legislation.
>> Other existing check mechanisms include, for example, the administrative inspections by the Ministry of Internal Affairs and Communications, but these are of doubtful value as problems are seldom indicated in writing and there is very little follow-up. Thus, we must weigh carefully whether the existing systems are functioning.
>> In conjunction with an ombudsman system, we should also discuss preliminary investigations and strengthening the investigative powers of minority parties.
DOI Takako (Social Democratic Party)
>> There are calls for an ombudsman system as a guarantee of oversight over the executive branch and democratic government, but we should recognize that, in Japan, the Diet is already empowered to keep a check on the administration, and that this is embodied in the right of petition (Article 16) and the right of Diet Members to investigate state affairs (Article 62).
>> The law stipulates that the Diet shall receive and handle petitions in good faith, but in practice their contents tend to be reviewed only at the end of each session. I questioned this when I was Speaker of the House.
>> The right of Diet Members to investigate state affairs is inferred from the fact that Article 41 declares the Diet the highest organ of state power. In practice, however, when we request documents from the administration, the required documents are very slow to appear.
>> In view of these points, I see no need to introduce an ombudsman system. Instead, the institutions based on Articles 16 and 62, which are guaranteed by the Constitution, should be given more substance, their operation should be improved, and they should be used to the full in overseeing the executive branch.
Comments after the first round
EDANO Yukio (Democratic Party of Japan and Club of Independents)
(In connection with the comments by Mr. SHIBAYAMA)
>> The fact that ombudsman systems have spread throughout the EU is a sign that their development is not necessarily linked directly to the ratio of taxes and social security contributions to national income. Indeed, one could say that the situation in Japan, where the public's distrust of the administration has led the government to pass the burden of funding social security on to future generations in the form of a mounting budget deficit, points to the need for a check on the executive branch.
(In connection with the comments by Mr. AKAMATSU)
>> While the system of administrative counseling is certainly meaningful in terms of controlling the executive branch, we should remember that oversight from inside the administration and oversight from the outside are two very different things.
(In connection with the comments by Ms. DOI)
>> I agree that the present system for overseeing the administration is not working, but in a parliamentary cabinet system we must devise an oversight mechanism that takes as its premise the unity of the government and the ruling party or parties. On that basis, (a) one possible method might be to design a parliamentary cabinet system which separates the Cabinet from the executive branch so that only the Cabinet is one with the ruling party, but this is simply not realistic. (b) The next alternative is to adopt a policy of not deciding matters of oversight over the administration by majority vote, but as majority rule is the essence of a parliamentary assembly, it is unlikely that it can be excluded. (c) This leaves the possibility of creating a parliamentary ombudsman as an oversight mechanism separate from the ruling party. The status of such a system would need to be established in the Constitution, as it is a new form of separation of powers.
FUNADA Hajime (Liberal Democratic Party)
>> An ombudsman is needed as a supplementary mechanism in cases where redress for the rights of the people is not otherwise obtainable, and to oversee the ballooning administration.
>> There are two types of ombudsman, parliamentary and executive, but the latter, being an internal check, has its limits, and I believe we should adopt the parliamentary type. In doing so, we need to ensure the neutrality of the office, i.e., to ensure that it is not influenced by the distribution of power in the Diet.
>> In introducing an ombudsman system, it will be important to reconcile it with similar existing systems. In this regard, the Committee on Audit and Oversight of Administration seems to have some shortcomings that would benefit from the complementary work of an ombudsman. Also, to make up for the lack of specialization in the administrative counseling system, a special ombudsman system would be preferable to a general one.
DOI Takako (Social Democratic Party)
>> Some people argue for an ombudsman system as a "fourth power" under the parliamentary cabinet system. However, what originally drew attention to the need for a system of oversight of the administration was the fact that parliaments cannot exercise sufficient control over administrative states, regardless of whether the country has a presidential system or a parliamentary cabinet system.
>> Two reasons for the incapacity of the Diet, which according to Article 41 is the "sole law-making organ," are the carrying-over of practices from the Imperial Diet and the inadequate nature of the advisory bodies that are supposed to support its legislative work.
>> When I was Speaker of the House, I took the initiative in discussing Diet reform, commissioning reports entitled "A Proposal for Diet Reform" and "A Proposal for More Active Drafting of Member's Bills." Instead of relying on an ombudsman, we should focus our efforts on ensuring that the Diet itself performs the functions that properly belong to it.
>> What matters is not to create new institutions but to implement fully the provisions of the existing Constitution.
SHIBAYAMA Masahiko (Liberal Democratic Party)
(In connection with the comments by Mr. EDANO)
>> Mr. EDANO commented that we should introduce an ombudsman system because Japan has become an administrative state, but excessive spending by the executive branch is not the only cause of the budget deficit. Compared with Sweden, Japan's executive branch is bigger and less efficient, and this also plays a part. Rather than an ombudsman system, what we really need is administrative reform and tax reform.
(In connection with the comments by Mr. TSUJI)
>> Even if we create an ombudsman system by legislation without making explicit provision in the Constitution, there is no reason to fear that its powers will be inadequate, since we already have in place the necessary legal basis, such as the Freedom of Information Law.
(Comments)
>> I am hesitant about giving an ombudsman system constitutional status, because it is not entirely clear whether it is a parliamentary body or a body for the redress of individual rights, and consequently we end up talking about a "fourth power."
>> Rather than introducing an ombudsman system, it would be more realistic to upgrade the administrative counseling system and create a body that takes up specific complaints, or to give citizens access to the Committee on Audit and Oversight of Administration, or to put in place an external organ of the Committee to keep a check on the administration.
EDANO Yukio (Democratic Party of Japan and Club of Independents)
(In connection with the comments by Ms. DOI)
>> I agree that we need to improve the functions of the Diet, but there are limits to what a parliamentary assembly can do. It is difficult for a collegial body that operates by majority rule to accept and sort a considerable number of complaints, or to investigate them.
(In connection with the comments by Mr. SHIBAYAMA)
>> I agree that there is a need to pursue administrative reform, but the administration's history of becoming bloated suggests that it will not be easy to shift course and have the ruling parties exercise the kind of control necessary to trim the budget. An institution like an ombudsman, who performs his or her duties independently although the parliament has a certain amount of control in such matters as appointments, is a system which takes the realities of a parliamentary assembly into account.
TOKAI Kisaburo (Liberal Democratic Party)
(In connection with the comments by Mr. EDANO)
>> In discussing the present lack of adequate checks on the administration, we need to sort out whether this is due to causes inherent in the institutions themselves, in other words, whether a parliamentary cabinet system needs an ombudsman to function, or whether it is due to the way the institutions are being operated. The need for checks on the administration arises in both parliamentary cabinet systems and presidential systems alike.
>> We need a system to keep a check on the Diet (which in turn keeps a check on the administration) in ways other than national elections.
(In connection with the comments by Mr. FUNADA)
>> Even though a Committee on Audit and Oversight of Administration has been created, I do not have the impression that the way it conducts its deliberations has changed or that it has made any great difference in the Diet's investigative powers. Surely it would make a greater difference in the investigative functions of the Diet if we created a new, independent body rather than relying on the existing ones.
(In connection with the comments by Ms. DOI)
>> It is also essential to improve the advisory bodies that support the work of the Diet.
HANASHI Yasuhiro (Liberal Democratic Party)
(In connection with the comments by Mr. EDANO)
>> I agree with Mr. EDANO's view of the present bloated state of the administration, but I disagree with his comment that there are limits to what the ruling party in a parliamentary cabinet system can do to keep a check on the executive branch. Because many of the recent administrative scandals were the result of a failure to act, the Diet as a whole, headed by the ruling parties, maintains a check to ensure that the administration takes the necessary actions.
>> That is not to say, however, that I do not recognize the need for an ombudsman system. The public safety commissions and similar boards are an example of bodies that keep a check on the administration while being independent of it, with the Diet controlling personnel appointments. We should consider giving them the additional function of handling complaints.
KANO Michihiko (Democratic Party of Japan and Club of Independents)
>> In Japan, because the public associates the word "ombudsman" with "citizen ombudsmen," the image of the office has yet to become firmly established. However, as Prof. UTSUNOMIYA Fukashi told the Subcommittee on Ideal Government and Organizations, "citizen ombudsmen" are not ombudsmen in the true sense of the term.
>> In contrast to Europe, where democracy and the rule of law are already well established, it seems to me that in Japan the public is not greatly interested in "government." However, such questions are fundamental to democracy, and the creation of an ombudsman would help improve the quality of our democracy.
>> We should actively consider introducing an ombudsman system in the true sense in Japan. To guarantee its independence and ensure that the public understands it, we should make express provision for the office in the Constitution.
>> Further, I would argue that the kind of amicable resolution sought by an ombudsman is more suited to Japan than the American approach of going to court to decide which party is right and which is wrong.
YAMAGUCHI Tomio (Japanese Communist Party)
>> I can affirm the necessity to establish a parliamentary ombudsman in Japan. However, the Constitution already expresses the spirit of such an office in Articles 16 and 62. The real problem is that the ideals of the Constitution are not being put into practice. There is no need to make express provision in the Constitution for an ombudsman.
>> If we establish a parliamentary ombudsman by legislative means, it will be necessary, in particular, to make clear the relationship of the office with the Diet by expressly providing for its neutrality and independence.
NAKAGAWA Masaharu (Democratic Party of Japan and Club of Independents)
>> In thinking about whether to establish an ombudsman, we need to take into account the background against which the system developed in Europe.
>> Japanese administrators have often tended to use methods that amount to collusion with industry. In contrast, in European nations administrators act according to clear rules and are results-oriented. It seems to me that the ombudsman system developed in the context of this kind of administrative approach. Japan is now trying to institute similar measures, but they are still not adequate, and neither is the system on which they are based.
>> I think that an approach intermediate between the old collusive type of administration and the results-oriented type will be best for Japan in the future, and an ombudsman would play a very important part in such an approach.
>> If we establish an ombudsman, I think the parliamentary type would be better than the executive type. It is important to secure the independence of the office.
NAKANE Yasuhiro (Democratic Party of Japan and Club of Independents)
>> During the current session, I have submitted twelve written questions to the Cabinet, but seven of them have been held up in the Committee on Rules and Administration and not forwarded to the Cabinet. We should certainly rethink this treatment of written questions to the Cabinet, as the Diet is thereby undermining its own function of keeping a check on the executive branch.
>> Effective auditing has been made impossible by various practices; for example, a ministry may prepare its own list of mock questions and answers, and the audit is carried out based on this. In future, we should also examine what form audits should take.
YAMAHANA Ikuo (Democratic Party of Japan and Club of Independents)
>> It is difficult for the Diet to keep a check on the application of laws in cases which involve a failure of the administration to take action, and it will become all the more difficult to keep a check once administrative methods shift from prior regulation to regulation after the fact. Also, administrative litigation does not afford redress for complaints about actions by administrative agencies that are wrong but not illegal. For these reasons, we should actively consider introducing an ombudsman system.
>> I think that the ombudsman will be able to perform his or her functions better if the office is established in the Constitution, rather than by legislation.
OIDE Akira (Democratic Party of Japan and Club of Independents)
>> Underlying the debate about creating an ombudsman is the fact that parliamentary checks on the executive branch are losing their effectiveness. If the Diet is to perform its check function properly, it needs to have access to administrative information, and we should establish the office of ombudsman as a body that has this power.
>> Ombudsman systems are particularly necessary to oversee organizations such as the military and the prisons, where it is especially difficult to see internal conditions from the outside.
>> At the local government level, my contacts with citizen ombudsmen have shown me that the average citizen views the local assembly as part of the administration and does not think it keeps a proper check on local administrators. This suggests that it is at the local level that we really need ombudsmen.
MABUCHI Sumio (Democratic Party of Japan and Club of Independents)
>> We need to fully achieve control by the people, with whom sovereignty resides, and the right of petition in Article 16. Important mechanisms to that end are preliminary investigations and brief written questions to the Cabinet, which are systems that allow for checks by the opposition parties and for minority voices. Hence, attempts to limit written questions to the Cabinet are problematic.
>> The problem with petitions is the way they are handled. As a general rule, they are dealt with at the end of the session, and there is insufficient follow-up of those that are adopted. Petitions should be freely discussed in committee. There are also criticisms of the petition system itself; for example, the conditions for presenting a petition are said to be too strict. Further, it is doubtful whether the receipt of complaints by the Committee on Audit and Oversight of Administration is functioning properly. Given these problems in both the design and the operation of existing institutions, an ombudsman system looks promising as a check mechanism, but to achieve its potential, it would have to be truly open to the people, as in Sweden.
SUZUKI Katsumasa (Democratic Party of Japan and Club of Independents)
>> I am in favor, in principle, of introducing an ombudsman system. While it is true that the Constitution lays down the separation of powers, in the existing system this has reached an impasse. If we are to pursue major reforms such as those now in hand, we will need the public's acceptance, but I doubt that the public will agree to reforms that are mere extensions of the existing systems. That is another reason why we need an ombudsman system with a constitutionally guaranteed status.
KATO Katsunobu (Liberal Democratic Party)
>> With the administration growing ever larger, we need to address the design of the institutions themselves, rather than just improving their operation. Introducing an ombudsman system is one possible way of keeping a check on the executive branch. With regard to the actual operation of the administration, we should also discuss how to keep a check both on its actions and on its failures to take action.
>> Since an ombudsman oversees the administration on behalf of the parliamentary assembly, the parliamentary type is appropriate.
>> The Constitution should be revised appropriately as the occasion requires. We could consider making explicit provision for an ombudsman system in the Constitution, simply to make the functions of the office clear.
SONODA Yasuhiro (Democratic Party of Japan and Club of Independents)
>> I think we could well introduce an ombudsperson (ombudsman) system as one option for protecting the rights of the people, with whom sovereignty resides, in light of the growing risk of their rights being infringed due to the ever-increasing scale of government.
>> It would be possible to provide for an ombudsman system by legislation alone, in light of the examples at the local government level where such systems, created as an auxiliary to the mayor's or governor's office, have gained the citizens' trust in the course of their operation. But it would be better still to make provision for it in the Constitution, as this would establish it as an institution worthy of the people's trust.
KANO Michihiko (Democratic Party of Japan and Club of Independents)
>> Seeing that not even the ruling parties and Cabinet ministers are kept fully informed by the bureaucracy, shouldn't we discuss creating an ombudsman not in the terms of a partisan debate, but in terms of progressing beyond a bureaucratic state and creating a nation that truly belongs to the people? The public would accept a system that gave the ombudsman access even to military and classified matters, as in Sweden. Further, I believe that true democracy will grow out of the effort to provide for this in the Constitution.
WADA Takashi (Democratic Party of Japan and Club of Independents)
>> I think that, to determine whether an ombudsman is necessary, we should approach the question from two perspectives: the need for self-checking and the need for checking by others.
>> There will be no need for an ombudsman as a self-checking mechanism if the reforms of the public service result in a system that enables public servants to see whether their work is serving the public and to take individual responsibility. If the reforms do not have this effect, an ombudsman will be necessary.
>> As a mechanism for checking by others, Diet Members have the right to investigate state affairs, but we should exercise this right in moderation and with an awareness of what our own role entails. The decision as to whether a check by this method is needed should be made from the perspective of accountability to others, in which the most important thing is to be able to report to the public, rather than solely in terms of a partisan debate. As Diet Members are currently exercising the right to investigate state affairs immoderately and without sufficient awareness of their own role, I think that, at present, there is a need for an ombudsman.
SHIBAYAMA Masahiko (Liberal Democratic Party)
>> It is important to have checks on the executive branch, but the Diet, which should be carrying them out, is falling short. Rather than supplementing the Diet's role with an ombudsman, however, supplementing it with administrative litigation, which the recent reforms have given real substance, would be more effective in terms of actual enforcement since litigation has elements of compulsion.
(In connection with the comments by Mr. YAMAHANA)
>> Mr. YAMAHANA stated that an ombudsman system should be provided with constitutional status because the freedom of information system is inadequate on its own, but I doubt whether an ombudsman system would make a dramatic difference, as information on military and related matters would probably not be released by means of considerations of the public interest.
>> Restrictions on human rights in the penal system should be dealt with by revising the Prison Law. I have a high regard for the work of citizen ombudsmen and the counselors who handle administrative complaints, and I am concerned that if we provide for an ombudsman system in the Constitution, citizen ombudsmen may be seen as second-tier. At the same time, I cannot help wondering whether the independence of the ombudsman's budget can be secured, and whether due consideration can be given to the public interest should there be court procedures.
SONODA Yasuhiro (Democratic Party of Japan and Club of Independents)
>> The role of an ombudsperson is to provide a check on the executive branch and thereby protect the rights of the public.
(In connection with the comments by Mr. SHIBAYAMA)
>> I would not say that the systems for administrative litigation and freedom of information are inherently inadequate, but they do not always function adequately in practice. The problem with the Freedom of Information Law is that it does not clearly state the public's right to know. We should change the Freedom of Information Law and also increase the options for handling complaints from the public, and actively introducing an ombudsman system would be one way to do this.
YAMAHANA Ikuo (Democratic Party of Japan and Club of Independents)
(In connection with the comments by Mr. SHIBAYAMA)
>> Administrative litigation revolves around whether or not an action is legal. The courts will also accept cases seeking to mandate action where the administration has failed to act, but only if that failure is likely to have serious consequences. I suggest that it would be valuable if, in cases where the administration's actions are unreasonable without being illegal, an ombudsman were to gather testimony from the public and eventually make a recommendation to the Diet.
>> We should give an ombudsman system a constitutional status because, in my experience, the executive branch tends to produce documents requested on constitutional grounds but not those requested based on legislation, and because such a system would complement checks by the Diet. Questions such as whether to impose confidentiality on the ombudsman are a matter of the design of the system and can be dealt with later.
MIHARA Asahiko (Liberal Democratic Party)
>> I picture an ombudsman as providing redress where this is not available under the law, but when it is suggested that his functions go beyond that, I cannot form a mental image. A change of government not only gives Diet Members a sense of crisis but is also a great stimulus to the executive branch. Where there is the possibility of a change of government, I think that, to a considerable extent, it does away with the need for oversight over the administration, for which an ombudsman is said to be necessary.
International organizations and the Constitution, with special reference
to the UN Charter
Main points of initial round of comments by representatives of each party
HANASHI Yasuhiro (Liberal Democratic Party)
>> Prime Minister KOIZUMI has announced his intention to seek a permanent seat for Japan on the UN Security Council. I believe that we can make the contributions required of a permanent member, albeit within certain limits.
>> The Constitution lays down the limits of state power. As it can be argued that acts which possibly fall within constitutional limits can properly be carried out, it is important to study the Constitution to determine the limits of what may be judged constitutional.
>> Article 9, Paragraph 1 of the Constitution carries on the ideals of the Kellogg-Briand Pact of 1928 and the UN Charter. The latter, however, while it bans the use of force, does recognize collective security and the exercise of the right of self-defense under certain conditions. Hence, I consider that Paragraph 1 does not prevent Japan's using military force as a normal nation. Further, Paragraph 2 leaves room for various interpretations and does not set specific limits; for example, it can be construed to mean that Japan can possess military forces in order to exercise the right of self-defense and make international contributions. Because of this openness to different readings, in practice, the meaning of the Constitution has been determined by the Cabinet Legislation Bureau, using the broadest possible interpretation.
>> Based on these observations, I propose: (a) creating a permanent Diet Committee on the Constitution so that Diet Members, among themselves, can bring constitutional questions to light, propose better mechanisms, discuss problems of interpretation, and so on; and (b) stipulating in the Constitution to what extent Japan should contribute to collective security under the United Nations, within what limits we recognize the right of collective self-defense, and to what degree the Self-Defense Forces' equipment should be limited to defensive purposes.
NAKAGAWA Masaharu (Democratic Party of Japan and Club of Independents)
>> Given that a constitution serves to restrain state power as well as providing a legal guarantee for democracy, I think that Japan should have moved, soon after the Occupation ended, to make explicit constitutional provision for the possession of military forces in an exclusively defensive capacity.
>> Japan's failure to do this, substituting an interpretation-based approach instead, has made its intentions as a nation ambiguous, causing concern to other nations in the region and ultimately leading to a loss of trust. Until now we have always followed the United States' global strategy, but amid today's changing global situation, Japan is being asked to clarify its own intentions as a nation.
>> Looking at this question in terms of our international contributions, combating terrorism and dealing with failed states have become new challenges as the world attempts to establish a new post-Cold War order. UN-sponsored military action has succeeded when it has been part of post-conflict efforts to build peace, e.g., providing a provisional administration, but efforts to prevent conflicts in advance have ended in failure because major powers have exercised their vetoes or used force unilaterally, and this is an issue that remains to be addressed. In light of this situation, Japan should limit its international contributions to peace building through operations to deal with the aftermath of conflicts.
>> Looking at the question in terms of the right of self-defense, we should formulate our security policy in the context of both the Japan-U.S. Security Treaty and our policy toward Asia. I think that the Constitution should provide explicitly for the right of self-defense, which is laid down by the UN Charter, but there are dangers in considering the right of self-defense solely in terms of our alliance with the United States. The discussion should be conducted in the context of regional security in Asia.
SATO Shigeki (New Komeito)
>> Article 9 has played a very great role in the postwar period. We in New Komeito have been carrying on an active discussion regarding Article 9. The majority of members agree that its existing provisions should be firmly maintained, though opinion is divided on some of the specific issues, such as (a) whether to recognize the exercise of the rights of individual and collective self-defense, (b) whether to establish a provision recognizing the existence of the Self-Defense Forces, (c) whether to recognize collective security under the United Nations, (d) whether to specify the nature of Japan's international contributions. We intend to examine such questions further in the party's ongoing debate on "adding to the Constitution," with a particular focus on whether to make explicit provision for the existence of the Self-Defense Forces and what form Japan's international contributions should take.
>> In my personal opinion, we should make clear how we would approach permanent membership of the Security Council, i.e., with what principles and in what role. We should announce to the international community that even if Japan gains a permanent seat, we will not use military force, we will respect our Peace Constitution, and we will provide multifaceted cooperation in nonmilitary areas such as human security. We have already shown results in those areas, and thus I believe that we can play a role suited to a permanent Security Council member under the existing Constitution, without taking part in the use of force.
>> We should add a constitutional provision authorizing our international contributions on the basis of clearly established ground rules, e.g., the actions in which we take part must be based on UN resolutions and must not have the use of force as their purpose. Further, taking into account the peacekeeping operations in which Japan has participated over the last decade or so, I believe that the Japanese people would consent to adding "international cooperation" to the official duties of the Self-Defense Forces.
YAMAGUCHI Tomio (Japanese Communist Party)
>> The UN Charter has two especially notable features: (a) it clearly states the rules for maintaining international peace and security; (b) it establishes the guarantee of fundamental human rights and the improvement of living standards as the basis of lasting peace.
>> In regard to (a), we can read the UN Charter's basic stance in provisions such as Article 2, which calls for international disputes to be settled by peaceful means and bans the threat or use of force, and Article 39, which says that the Security Council shall determine the existence of any threat to the peace or an act of aggression. In other words, the Charter does not allow individual nations to go to war whenever they wish, but seeks to create global self-government in which the rules of peace are observed.
>> The principles I mentioned under (b) are clearly stated in the Charter's Preamble. They have given rise to a series of international human rights treaties, especially the International Covenants on Human Rights.
>> The Constitution of Japan can be called a concrete embodiment of the pledge of peace achieved in the UN Charter, as suggested by the fact that the Constitution adopts the Charter's language in Article 9, Paragraph 1. Furthermore, Paragraph 2 of Article 9 clearly renounces the possession of war potential and the right of belligerency. These provisions have been called the vanguard of the world movement for peace.
>> As the nation which has explicitly renounced war in Article 9, Japan should adhere strictly to the principles of its Constitution in its international cooperation and should declare its readiness to contribute to the world in ways consistent with Article 9, that is, through nonmilitary international support activities for humanitarian missions such as disaster relief and poverty relief.
>> The Constitution has ample human rights provisions, and these can be said to have been deeply influenced by the UN Charter.
DOI Takako (Social Democratic Party)
>> When we look at the relationship between the United Nations and the Constitution in legal terms, we note two major features: (a) when we compare the Preambles of the UN Charter and the Constitution, although there are some minor differences, the Constitution is compatible with the overall course set by the UN Charter; (b) the UN Charter says in Chapter VII that it is possible to provide facilities other than military forces by special agreement, and Japan joined the United Nations under an agreement that it would not provide armed forces.
>> Constitutionally, one must take a negative view of participation by the Self-Defense Forces in collective security operations. We should distinguish clearly, by special agreement, what Japan can and cannot do. Each UN member cooperates in collective security in a different way, and there is therefore no need to revise the Constitution in order to participate in collective security operations.
>> The first priority in preventing terrorism and conflicts is to eliminate their causes. From a human security viewpoint, it is important that Japan contribute in such areas as guaranteeing the right to a certain standard of living, education, and sanitation, and that it consistently act in a nonmilitary, life-related, and civilian capacity.
Comments after the first round
FUNADA Hajime (Liberal Democratic Party)
>> Despite Japan's professed adherence to the principle of the centrality of the United Nations, Article 9 is not compatible with the UN Charter because it makes no mention of the "right of individual or collective self-defence" which Article 51 of the Charter recognizes for an interim period until the Security Council takes the measures laid down by Article 42. We need to review the Constitution to make the two compatible.
>> Under Article 42 of the UN Charter, when the Security Council decides on military sanctions, we must cooperate with collective security measures. Can Japan get away with its choosy attitude of fulfilling what is demanded of it to cooperate in all areas except for military cooperation? Opinions may vary from person to person.
>> It would be difficult to meet the traditional obligations of a permanent member of the Security Council with our existing Constitution, and I think we should be cautious about seeking a permanent seat. However, if the High-Level Panel which began work last year makes progress on UN reform, and if the current obligations of permanent Security Council members are relaxed, in my view it would not be impossible for Japan to hold a permanent seat without changing its Constitution. Even so, the "enemy state" clause in Article 53 of the UN Charter should certainly be deleted.
EDANO Yukio (Democratic Party of Japan and Club of Independents)
>> In the past, the United States' capacity for settling conflicts by force of arms was very effective in cases where the parties were sovereign states, which date from the beginning of the modern age. In the 21st century, however, conflicts between sovereign states are giving way to terrorism, ethnic conflicts, and related problems, and we have seen that military force is not always effective in such cases. Resolving terrorism and ethnic conflicts requires the maintenance of internal order and international cooperation. Hence, it seems to me that international bodies will take on still greater significance in future.
HANASHI Yasuhiro (Liberal Democratic Party)
(In connection with the comments by Mr. FUNADA)
>> I do not see Article 9 and the UN Charter as mutually contradictory, since Article 9 carries on the principles of the 1928 Kellogg-Briand Pact and the UN Charter, and the UN Charter does not preclude the right of self-defense.
(In connection with the comments by Mr. EDANO)
>> You have only to look at the examples of state-sponsored international terrorist organizations, and the frictions between states in East Asia, to see that states are still significant even today. That said, I expect that integrated security within a regional framework will become more important in the 21st century.
AKAMATSU Masao (New Komeito)
>> Japan's stance on international cooperation has gone through several stages, including "one-nation pacifism" before the Gulf War, and, after it, a reliance on taking part in peacekeeping operations with the idea that this would enable us to maintain our pacifist approach. Today, however, there are calls for a pacifism involving operations in many different sectors.
>> We may wish to realize a pacifism involving operations in many sectors, but the Constitution makes only the briefest mention of such ideas. I believe that a consensus can be readily gained on adding to the existing Constitution in those areas where it is inadequate, while recognizing its overall high quality. In my personal opinion, besides adding provisions in areas related to international cooperation, such as collective security, we should recognize the right of individual self-defense. With regard to collective self-defense, we should think through the concept and add to the Constitution those aspects that can be recognized.
YAMAGUCHI Tomio (Japanese Communist Party)
>> Prime Minister KOIZUMI has announced his intention of seeking a permanent Security Council seat for Japan, but a more urgent task is to seek the trust of the world community through diplomatic efforts for peace, thereby breaking free of our present tendency to acquiesce to the United States.
>> If we gain a permanent seat on the Security Council, we will have a duty or responsibility to provide armed forces and take part in the Military Staff Committee as laid down in the UN Charter, but this is contrary to Article 9. I am opposed to the move to seek a permanent seat as it is part and parcel of efforts to revise Article 9 and dispatch the Self-Defense Forces overseas, and it will lead to Japan becoming a military power.
(In connection with the comments by Mr. FUNADA)
>> Mr. FUNADA said that Article 9 does not make proper reference to the provisions of the UN Charter. However, none of the other national constitutions that state pacifist principles make reference to the country's relationship with the United Nations. That was taken for granted in creating the constitutional system of each of these countries.
(Comment)
>> It is not only the government that interprets the Constitution to mean that we cannot exercise the right of collective self-defense; this is also regarded as a given by experts in constitutional law. To relax this position would depart from the spirit of Article 9.
NODA Takeshi (Liberal Democratic Party)
>> As I see it, participation in UN forces and the like was not envisaged in the Constitution because, when it was enacted, Japan was a "former enemy state" under occupation. Article 9 sets limits to the right of self-defense, but it does not rule out collective security. In fact, one can read the Preamble as saying that we should cooperate.
>> Prime Minister KOIZUMI has announced his intention to seek a permanent Security Council seat, but he has not laid the groundwork by seeking the understanding of neighboring countries, and the United States can hardly be expected to actively support Japan's bid while our stance on collective security remains unclear. We should reorganize our ideas strategically.
EDANO Yukio (Democratic Party of Japan and Club of Independents)
>> I am not opposed to Japan's seeking a permanent seat or cooperating in collective security in the United Nations. However, even though the former enemy state clause may be a dead letter in practice, it is a top priority to have it deleted, and we should do so before seeking a permanent seat.
TOKAI Kisaburo (Liberal Democratic Party)
>> Compared with when the Constitution was enacted, the situation today is very different and Japan's influence in the international community has grown. The question now is what role Japan should play in the United Nations amid changing international conditions, especially the end of the Cold War.
>> With regard to Japan's stance toward the UN Security Council, while the former enemy state clause is certainly a problem, we should first clarify whether or not we want a permanent seat on the Council and what kind of contribution we will make if we obtain it.
>> Japan's international contribution is not limited to peace building in the aftermath of conflicts. There are many things that we can do in areas such as disarmament.
>> In my personal opinion, the existing Constitution makes it difficult to participate in collective security, and we should enact a new Constitution to make this possible.
MIHARA Asahiko (Liberal Democratic Party)
>> There is a difference between being unable to act because our hands are tied and being unwilling to act where we have a free choice. Japan's present security policy is premised on being unable to act, and we should change this by revising the Constitution.
>> Japan plays a very active role in the United Nations in nonmilitary areas, but in military areas it merely cooperates to the best of its ability, given its limitations. Japan was "unable" to take part in the UN's preventive deployment in Kosovo, which was very effective. We should become involved in operations like this where we are presently "unable" to act.
(In connection with the comments by Mr. FUNADA)
>> With the current mounting mood for making a bid for a permanent seat on the Security Council, I see nothing wrong with doing so.
SATO Shigeki (New Komeito)
>> We should make clear how we would approach permanent membership of the Security Council, i.e., with what principles and in what role. The use of force is impossible under the existing Constitution, and the question of whether it is possible for Japan to become a permanent member with that proviso needs to be debated at the United Nations. If found suitable on that basis, we should demonstrate our unique strengths in the fields where we have done pioneering work, such as human security.
>> The UN Charter is out of touch with the real-world international situation in a number of ways. Among them is the fact that the former enemy state clause remains in place; the fact that the UN force which the Charter calls for has never been formed; and the fact that peacekeeping operations are sometimes referred to as international cooperation under "Chapter 6.5." Japan should express its views on these issues.
SHIBAYAMA Masahiko (Liberal Democratic Party)
>> I feel that we do not yet have a consensus on whether it would be more conducive to peace to change Article 9 or to keep it as it is.
>> The changing international situation should be reflected appropriately in the provisions of the Constitution.
>> In our international contributions, over the long term we should make it possible to use material force, but in the meantime we should endeavor to close the gap between the Constitution and reality by providing for participation in "collective security not accompanied by the direct use of force."
>> We should not only recognize the existence of the right of collective self-defense as a natural right, but we should also recognize its exercise. Japan's current position should be understood as follows: we recognize the exercise of the right of collective self-defense but we are refraining from exercising it.
>> There is no necessity to take part in military measures even if we gain a permanent seat on the Security Council. Permanent membership should enable us to make our views heard actively in the forum of the United Nations and thus to lead the debate on collective security.
FUNADA Hajime (Liberal Democratic Party)
>> What I intended to say in my earlier comment was that I feel something is amiss when the Preamble of the present Constitution proclaims the centrality of the United Nations yet Article 9 exists in a form that stands apart from and above that principle, and that if we revise the Constitution, we should amend it in line with the UN Charter.
>> It is not that I hesitate over the idea of seeking a permanent Security Council seat, but I do feel that it may be impractical, given Article 9, in light of the various obligations that the existing UN Charter places on permanent members. But if the United Nations undertakes appropriate reforms, especially increasing the number of permanent Security Council members and redefining their character, it would be natural for Japan to take the stance of playing an active role therein.
TSUJI Megumu (Democratic Party of Japan and Club of Independents)
>> Some people argue that Article 9 must be revised because the UN Charter and the Constitution are incompatible, or because we are aiming for a permanent seat on the Security Council, but there is no reason to think that we cannot obtain a permanent seat unless we change Article 9. In my view, there will be no need to change the Constitution to gain a permanent seat if UN reforms are carried out based on the discussions so far, including the work of the High-Level Panel.
>> I question whether we can gain a permanent seat by changing Article 9, and whether we can win neighboring countries' acceptance of Japanese permanent membership. Japan will lose its international presence if its foreign policy stance lacks a strategy, as it does when we give our unconditional support to the American attack on Iraq. What we need is a strategic foreign policy of our own, free of the U.S. yoke.
>> Japan should display leadership in the formulation of worldwide rules and principles governing issues that do not fit into the traditional UN framework, such as terrorism and regional conflicts.
YAMAGUCHI Tomio (Japanese Communist Party)
>> Japan, whose Constitution contains Article 9, joined the UN collective security structure with the reservation that it would not take on military obligations. On this basis, we should carry out UN peacekeeping operations in nonmilitary fields.
(In connection with the comments by Mr. SHIBAYAMA)
>> Article 51 of the UN Charter, which stipulates the right of collective self-defense, is provisional and exceptional in nature. The idea that the right of self-defense is a natural right is mistaken. This is clear in light of the large number of countries around the world that have withdrawn from all military alliances.
(In connection with the comments by Mr. NODA)
>> It is clear that in the debate before the Constitution was enacted, the UN Charter was taken into consideration and our eventual membership of the United Nations was assumed.
NAKAGAWA Masaharu (Democratic Party of Japan and Club of Independents)
>> Japan officially professes the centrality of the United Nations, but, in my view, our actual course has been based on the centrality of the United States. This tendency seems to have been accelerating recently in various spheres.
>> Under these circumstances, other countries in the region will inevitably see Japan as following the U.S. line. We should have a more Asian perspective.
YASUOKA Okiharu (Liberal Democratic Party)
>> Any nation that wants to play a part in international security should have its own defense capability, but under present global conditions no nation can defend itself alone. Our alliance with the United States is therefore of decisive importance to Japan.
>> Under the existing interpretation of the Constitution, even if an armed attack occurred in the area surrounding Japan, we would be unable to take part fully in joint action with the United States. In the event of such an emergency, those limitations could have a grave impact on the bilateral alliance.
>> The centrality of the United Nations also has its limits. If a problem arose in the Asian region, it is doubtful whether China or Russia, which are permanent members of the Security Council, would be able to deal impartially with the situation.
>> Japan has placed various restrictions on military activity in its Constitution, but its international contributions to peace building are well regarded nevertheless, as Prof. INOGUCHI Kuniko noted at an Open Hearing. Japan should act as a "peace power," confident in the course it has taken, and should aim to secure a permanent seat on the UN Security Council. We should also revise the Constitution to enable us to cooperate smoothly with other nations in peace-building operations.
OIDE Akira (Democratic Party of Japan and Club of Independents)
>> There is danger in Washington's and Moscow's arguments for preemptive attacks to remove destabilizing factors from the world situation. Japan should carry on peace-building work in the aftermath of conflicts, work that does not involve the use of force.
>> We should build an equal partnership in our relationship with the United States, regaining our "sovereignty" in matters such as the investigation of accidents caused by U.S. military personnel stationed in Japan.
YAMAGUCHI Tomio (Japanese Communist Party)
(In connection with the comments by Mr. YASUOKA)
>> Military alliances are a course that runs counter to the UN Charter, which adopts a collective security framework. While Article 51's recognition of the rights of individual and collective self-defense means that alliances cannot be said to directly violate international law, they are, to say the least, different from the course sought by the UN Charter.
>> Worldwide, a majority of nations today are nonaligned, and we should reexamine the question of military alliances from that viewpoint. What we need to do now is to change a state of affairs that violates the Constitution.
KANO Michihiko (Democratic Party of Japan and Club of Independents)
>> In view of the fact that Japan pays a large share of the UN's budget, Prime Minister KOIZUMI's announced intention to seek a permanent seat on the Security Council may be explained partially in emotional terms. However, I do not think that this can be achieved without great resolve on our part.
>> The public sees the United Nations as important but wants the emphasis at this time to be on our alliance with the United States because of the international situation which Japan is currently facing, especially the North Korean question.
>> Japan should take a hard look at how the international situation is likely to change in future and decide its own course of action regarding the relationship between Article 9 and the UN Charter, and regarding the question of a permanent seat on the Security Council. Debate from this perspective is also necessary.
YASUOKA Okiharu (Liberal Democratic Party)
(In connection with the comments by Mr. YAMAGUCHI)
>> Nonalignment might be a viable option if there were no nuclear threat, but that threat exists, and if Japan attempts to face it alone, massive public spending and the development of new military tensions will be unavoidable. Because of this, I am convinced that the Japan-U.S. alliance is a realistic policy which we should place at the center of our national security.
>> Even if Japan takes part in collective security whose objective is to exercise armed force, our national character is such that we will never be in the forefront or at the center of such actions. I say this because, in addition to the value that we traditionally place on life and our longstanding love of peace, another aspect of the national character is that we learned a tragic lesson in the last war, a lesson that we will apply to the future.
>> Japan should think about the path that a "peace power" should take as a nation that exercises restraint in the military sphere. In any case, we need to clarify the legal grounds for the nation's exercise of state power and to firmly control that exercise in such a way that we do not neglect measures to facilitate our defense and security smoothly.
AKAMATSU Masao (New Komeito)
>> It seems to me that Prime Minister KOIZUMI had two aims in announcing Japan's bid for a permanent seat on the Security Council: to internationalize domestic politics and to encourage discussion on revising the Constitution.
>> We should give priority to deleting the former enemy state clause and make a strong case for becoming a permanent member with our existing Constitution. But even if it became possible for Japan to hold a permanent seat, I think we would probably be a quite different kind of permanent member from the existing ones.
YAMAGUCHI Tomio (Japanese Communist Party)
(In connection with the comments by Mr. YASUOKA)
>> It is not appropriate to discuss the issue of nuclear weapons in the context of the Japan-U.S. alliance. Japan itself should take the initiative toward eliminating nuclear weapons.
>> The United States has announced, as an official principle of its foreign policy, a strategy of preemptive attacks which violates the UN Charter. From the point of view of keeping the peace in Japan, I think it is disastrous to have such an ally.
NAGASHIMA Akihisa (Democratic Party of Japan and Club of Independents)
>> The existing Constitution prohibits the use of force as a sovereign right of the nation. I believe that this permits us to participate in sanctions under Chapter VII of the UN Charter. What has prevented our participation is the Cabinet Legislation Bureau's incorrect interpretation of Article 9.
>> I agree with Mr. HANASHI's view that we should create a permanent Committee on the Constitution. Instead of leaving the right to interpret the Constitution to the Cabinet Legislation Bureau, I think that the Members of the Diet, who represent the Japanese people as a whole, should reinterpret it.